Lugose v Tom Mboya Labour College (Appeal E059 of 2023) [2024] KEELRC 730 (KLR)
The bottom line
#Kenya's Employment Court confirmed that employers must consult staff before redundancy and follow fair procedure, or pay compensation even years later.
What this practically means
#Executive summary
#Key legal issues
#Limitation
Suit filed within the 3-year limitation period under section 90 of the Employment Act
Termination was communicated by letter dated 23 September 2020 effective 1 October 2020; the suit was filed on 9 November 2022, within three years. The trial Magistrate's finding on time bar was erroneous.
Procedural fairness under section 41
Termination partly grounded on conduct required an opportunity to make representations, which was not afforded
Because one of the stated reasons was the Appellant's conduct, section 41 applied. The record did not show the Appellant was allowed to make representations in the presence of a colleague or union representative before termination.
Compliance with section 40 (redundancy)
Respondent failed to notify the Labour Officer in writing and the notice fell short of the statutory one month
Section 40 requires written notification of the Local Labour Officer at least one month in advance. No evidence of such notice was led, tainting fairness, and the notice from 23 September 2020 to 1 October 2020 was short of one month. Severance pay obligations were also not demonstrated, though gratuity was assumed to be a mislabelling of severance pay.
Compensation quantum
Equivalent of 9 months' gross salary awarded
Considering the Appellant's about 11 years of service and that some dues were paid, the Court found 9 months' gross salary (at Kshs 16,900/-) appropriate.
House allowance
Claim fails for want of evidential basis
Despite pleading non-payment, the Appellant adduced no evidence; appointment, confirmation letters and payslips produced by the Respondent showed payment of 15% of basic salary as house allowance.
Legal principles established
#- Consultation with employees or their unions prior to declaration of redundancy is an imperative requirement implicit in section 40(1) of the Employment Act
- A first appellate court must re-evaluate, re-assess and reanalyse the evidence and determine whether the conclusions reached by the trial court should stand
- Where termination is based partly on conduct, the employer must comply with the procedural fairness requirements of section 41 of the Employment Act
Court orders
#- 1.The judgment of the Senior Resident Magistrate is set aside and substituted with a judgment finding the Respondent unfairly terminated the Appellant's employment
- 2.The Appellant is awarded compensation of Kshs 152,100/- (equivalent of 9 months' gross salary)
- 3.The Appellant is granted costs before the Senior Resident Magistrate
- On appeal from
- Senior Resident Magistrates Court
- Cause filed 9 November 2022 (unfair termination and breach of contract)
- Jurisdiction invoked
- First appellate jurisdiction of the Employment and Labour Relations Court over appeals from the Senior Resident Magistrates Court in employment causes
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Lugose v Tom Mboya Labour College (Appeal E059 of 2023) [2024] KEELRC 730 (KLR)", Case Analysis (2024). Kisumu Appeal No. E059 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/730/eng@2024-03-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.