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ELRCDismissedNot stated in the judgment as provided· [2024] KEELRC 508 (KLR)

Kithunzi v Intra Africa Assurance Company Limited (Cause 869 of 2019) [2024] KEELRC 508 (KLR)

Employment and Labour Relations Court
7 March 2024
2,044 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan court upheld a redundancy where the employer followed the proper notice process, and the employee raised no timely objection.

What this practically means

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Executive summary

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The claimant, employed by the respondent as an Assistant Business Development Manager and later as Branch Manager at Lyric House CBD branch from 9th December 2013 until 25th May 2018, sued alleging that his termination on account of redundancy was discriminatory on grounds of ethnic or tribal origin, violated sections 5 and 40 of the Employment Act, 2007, Articles 27(5) and 23(3) of the Constitution, and breached his employment contract. He sought declarations, Kshs. 18,523,962 in entitlements for 9 years, alternatively 12 months' gross earnings as compensation under section 49(1)(c), punitive and exemplary damages, costs and interest. The respondent denied wrongdoing, asserting genuine redundancy in line with its 2017–2021 strategic plan and full compliance with section 40: written notice to the employee dated 25th April 2018 inviting 30-day consultations, notice to the labour officer acknowledged on 7th May 2018, payment of terminal dues of Kshs. 275,855 including severance at 15 days per completed year, and a signed certificate of discharge as full and final settlement. The Court found the parties were in a contract of service terminated by redundancy letter dated 25.05.2018; that the respondent substantially complied with section 40's notice requirements and that the notices sufficiently explained the reasons and extent of the termination; that the claimant, having signed the termination letter and raised no serious objections in the invited consultations, was bound by its terms; that the redundancy was genuine under sections 43 and 45; and that ethnic discrimination was not established, the claimant having pleaded no particulars and adduced no evidence beyond assertion. The claims for 9 years' lost earnings and benefits also failed, the claimant having gainfully moved on to render insurance services. The suit was dismissed with costs to the respondent.

Key legal issues

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01

Compliance with section 40 redundancy procedure

Holding

The respondent substantially complied with the requirements of 30 days' notices to the employee and labour officer, and the notices sufficiently explained the reasons and extent of the termination.

Reasoning

The claimant received and signed the redundancy notice dated 25.04.2018 which invited 30-day consultations; notice was given to the Cabinet Secretary for Labour on the same date and acknowledged by the Labour Commissioner on 07.05.2018. The reasons (staff rationalisation under the 2017–2021 strategic plan) were stated. The claimant signed the termination letter and raised no serious objections or alternative views in the invited consultations, so was bound by the terms.

p. 4
02

Genuineness and fairness of the redundancy reasons

Holding

The redundancy was genuine in terms of section 43 and valid and fair under sections 43 and 45 of the Employment Act.

Reasoning

The claimant confirmed several other employees left employment around the same season and offered no basis for asserting they left voluntarily. He never questioned the reasons by grievance or objection after receiving the elaborate notice. On a balance of probability, no material existed to doubt the fairness and validity of the reasons.

p. 4
03

Discrimination based on ethnic or tribal origin

Holding

The claimant failed to establish discrimination as alleged.

Reasoning

The claimant alleged his replacement was from a dominant ethnicity and that affected employees were disproportionately chosen, but other than his pleaded word he had no written or other evidence. He admitted he had not reported or expressed such a grievance while in employment or after receiving the redundancy notice. He did not plead particulars of the ethnicity of himself or the alleged dominant employees, and provided no evidence.

p. 4
04

Remedies for alleged unexpired tenure of 9 years

Holding

The claims for loss of earnings and benefits over 9 years failed as the claimant established no basis for them.

Reasoning

The claimant was terminated on grounds of redundancy and offered no good cause attributable to the respondent barring him from gainful engagement after termination. His own evidence showed that as at hearing (02.11.2023) he rendered insurance services, confirming he had gainfully moved on. Having failed to establish unfair termination, discrimination or breach of rights, no remedies were due.

p. 5

Legal principles established

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  • An employee who signs a termination letter inviting acceptance of its terms is bound as accepting those terms, especially absent serious objections through invited consultations.
  • Allegations of ethnic discrimination in redundancy selection must be supported by pleaded particulars and evidence; mere assertion is insufficient.

Court orders

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  1. 1.Judgment entered for the respondent against the claimant for dismissal of the suit with costs

Authorities

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Legislation

  • Employment Act, 2007section 5(3)
  • Employment Act, 2007section 40
  • Employment Act, 2007sections 43 and 45
  • Employment Act, 2007section 49(1)(c)
  • Constitution of Kenya, 2010Article 27(5)
  • Constitution of Kenya, 2010Article 23(3)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment and labour relations claims (Employment Act, 2007; Article 27 and 23(3) of the Constitution invoked in the pleadings)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kithunzi v Intra Africa Assurance Company Limited (Cause 869 of 2019) [2024] KEELRC 508 (KLR)", Case Analysis (2024). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/508/eng@2024-03-07

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.