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ELRCPartially AllowedAppeal No E018 of 2023· [2024] KEELRC 565 (KLR)

Lavington Security Guards Ltd v Orenge (Appeal E018 of 2023) [2024] KEELRC 565 (KLR)

Employment and Labour Relations Court
14 March 2024
CBChristine N. Baari
3,577 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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A Kenyan court upheld that a five-day redundancy notice was unfair but cut the employee's compensation in half.

What this practically means

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Executive summary

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This is a first-instance appellate judgment of the Employment and Labour Relations Court at Kisumu, where the employer appealed against a Trial Court decision finding the Respondent's termination on grounds of redundancy unfair and awarding all reliefs claimed, including 12 months' salary compensation, underpayment, house allowance, leave allowance, pay in lieu of notice, and gratuity. The Court condensed the fourteen grounds of appeal into two issues: whether the finding of unfair termination was supported by law and evidence, and whether the awards were deserved. On the first issue, the Court upheld the Trial Court's finding: the redundancy notice issued on 25th September 2021 took effect on 1st October 2021, only five days later, violating the mandatory one-month notice requirement in Section 40 of the Employment Act, and there was no evidence the labour officer was notified. On the second issue, the Court found the Trial Court made a blanket award without reasons. It reduced compensation from 12 to 6 months' salary (Kshs 90,852), holding the Respondent had secured comparable employment and had not proved entitlement to the maximum award. The underpayment award was upheld but recalculated at Kshs 111,384, the claim being statute-barred for the period before January 2019 under Section 90. Payment in lieu of notice of Kshs 15,141.95 was upheld. Awards for house allowance, leave allowance, and gratuity were set aside in their entirety. Each party was ordered to bear their own costs of the appeal, with the Appellant bearing half the costs of the suit before the lower court.

Key legal issues

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01

Validity of redundancy where notice was only 5 days and no proof of notification of labour officer

Holding

Termination unfair; short notice violated mandatory Section 40 requirements

Reasoning

Section 40 demands not less than one month's notice to the employee personally and copied to the labour officer where the employee is not a union member. The notice issued on 25th September 2021 took effect on 1st October 2021, only five days later. There was also no evidence the labour officer was notified, rendering the redundancy procedurally unfair.

p. 6
02

Adequacy of Trial Court's award of 12 months' compensation

Holding

Reduced to 6 months' salary

Reasoning

The Trial Court awarded maximum compensation without assigning reasons. Given the Respondent secured comparable employment and pressed claims for unpaid dues, maximum compensation was not proved; six months' salary was deemed sufficient.

p. 7
03

Underpayment claim

Holding

Reduced to Kshs 111,384 for the non-time-barred period

Reasoning

Pay slips showed consolidated salary of Kshs 10,500 against the minimum of Kshs 15,141.95 for a night watchman under the 2018 Wage Order, an underpayment of Kshs 4,641 per month. Claims predating January 2019 were statute-barred under Section 90 of the Employment Act.

p. 7

Legal principles established

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  • The seven-step redundancy procedure in Section 40(1) of the Employment Act is mandatory and must be fully complied with
  • Notice of not less than one month is mandatory before termination on account of redundancy
  • Maximum 12 months' compensation must be justified on sound principles
  • Underpayment claims are subject to the three-year limitation in Section 90 of the Employment Act

Court orders

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  1. 1.The award of 12 months' salary as compensation for unfair termination is set aside, and substituted therewith 6 months' salary for unfair termination at Kshs 90,852/-
  2. 2.The award of Underpayment is upheld at Kshs 111,384/-
  3. 3.The award on account of pay in lieu of notice is upheld at Kshs 15,141.95
  4. 4.The awards on account of house allowance, leave allowance and gratuity are set aside in entirety
  5. 5.Each party bears their own costs of the appeal; the Appellant to bear half the costs of the suit before the lower court

Authorities

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Legislation

  • Employment ActSections 2, 40, 40(1), 43, 45, 49(1)(c), 49(4), 90
  • Labour Institutions Actminimum wages provisions
  • Regulation of Wages (General) (Amendment) Order, 2018night watchman minimum wage

Cases cited (7)

  • Thomas De La Rue (K) Ltd v David Opondo Omutelema
    [2013] eKLR
  • Cargill Kenya Limited v Mwaka & 3 Others
    (Civil Appeal No. 54 of 2019) [2021] KECA 115 (KLR)
  • CMC Aviation Limited v Mohammed Noor
    [2015] eKLR
  • Kenya Union of Journalists and Allied Workers v Nation Media Group
    [2013] eKLR
  • Gerrishom Mukhutsi Obayo v DSV Air and Sea Ltd
    [2018] eKLR
  • Kenfreight (EA) Limited v Benson K. Nguti
    [2016] eKLR
  • Kenya Broadcasting Corporation v Geoffrey Wakio
    [2019] eKLR
On appeal from
Trial Court (Magistrates' Court, employment cause)
Jurisdiction invoked
Appellate jurisdiction from the Trial Court (provision not stated in judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Lavington Security Guards Ltd v Orenge (Appeal E018 of 2023) [2024] KEELRC 565 (KLR)", Case Analysis (2024). Appeal No E018 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/565/eng@2024-03-14

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