Moi v Windmill Limited (Cause 1073 of 2017) [2024] KEELRC 306 (KLR)
The bottom line
#A Kenyan court ruled a 'redundancy' unfair because the employer skipped mandatory written notices and procedures, awarding the worker compensation with costs and interest.
What this practically means
#Executive summary
#Key legal issues
#Whether the redundancy was fair and lawful
The purported redundancy did not comply with the mandatory requirements of Section 40(1) of the Employment Act and transitioned into an unfair termination.
The Respondent gave no written notice to the Claimant or the Labour Officer of one month, offered no selection criteria, held no consultations, and produced no evidence of the extent of the business decline justifying redundancy. Section 40(1)(b) required personal written notice for a non-union member. Non-compliance with these mandatory conditions meant the termination lacked both substantive justification and fair procedure under Sections 40 and 45 of the Employment Act.
Whether anticipatory salary (8 months) is recoverable
Declined; anticipatory earnings lack legal anchorage.
The Claimant had not earned the 8 months' salary claimed and tendered no evidence of entitlement. His one-year contract was terminable by notice, so there was no representation he would serve the entire term. Following D.K. Njagi Marete and Elizabeth Wakanyi Kibe, anticipatory benefits are irrecoverable.
Entitlement to compensation under Section 49(1)(c)
Awarded the equivalent of 3 months' gross salary.
Having found the termination unfair, the court exercised its discretion under Section 49(1)(c), considering the short service of about 2 years, the Claimant's lack of contribution to the termination, absence of warnings or misconduct, and that he did not seek to remain in employment.
Legal principles established
#- The requirements of Section 40(1) of the Employment Act on redundancy are mandatory.
- Where an employee is not a member of a trade union, the employer must notify the employee personally in writing of a redundancy.
- An employer must demonstrate both substantive justification and fair procedure in a redundancy, failing which it becomes an unfair termination.
Court orders
#- 1.Declaration that termination of the Claimant's employment was unfair
- 2.Salary for 25 days worked in April 2016
- 3.One month's salary in lieu of notice
- 4.Equivalent of 3 months gross salary as compensation
- 5.Costs of the suit to the Claimant
- 6.Interest at court rates from the date of judgment till payment in full
- 7.Set-off of the Claimant's loan of Kshs.36,000/= recoverable from his dues
- Jurisdiction invoked
- Original jurisdiction of the Employment and Labour Relations Court under the Employment Act, 2007 and the Employment and Labour Relations Court (Procedure) Rules, 2016
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Moi v Windmill Limited (Cause 1073 of 2017) [2024] KEELRC 306 (KLR)", Case Analysis (2024). Cause No 1073 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/306/eng@2024-02-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.