Mini Bakeries (Mombasa) Limited v Ndirangu (Appeal E128 of 2023) [2024] KEELRC 947 (KLR)
The bottom line
#The Employment Court in Mombasa confirmed that proper union notice and consultation can make a redundancy lawful, and that old leave and service claims are time-barred.
What this practically means
#Executive summary
#Key legal issues
#Consultation and notice in redundancy
The redundancy process was lawful: notice was issued to the union, consultations were held leading to an agreement of 2 July 2020, and personal notice issued to the respondent; the trial court erred in finding otherwise
The respondent was a unionised shop steward. The union was issued notice on 1 April 2020 and consulted on 8 April, 6 June and 19 June 2020, culminating in an agreement affecting 589 employees in the packaging department, with personal notice to the respondent. This satisfies section 40(1) of the Employment Act and aligns with Kenya Airways and Cargill and ILO Convention No. 158.
Severance pay period
Severance pay should be computed from the written contract of 1 November 2011 (9 full years), not 20 years; only a tabulation shortfall of Ksh.749 was due
The respondent began as a casual and was converted to a written contract on 1 November 2011. Claims before that contract are time-barred under section 90. Severance at 15 days per year over 9 years at Ksh.18,606 is Ksh.83,727; the appellant paid Ksh.82,978.77, leaving Ksh.749 due.
Annual leave pay for 2017 and 2019
The award for leave for 2017 and 2019 was unjustified; accrued leave cannot be accumulated beyond 18 months under section 28(4), and leave records confirm leave taken
Under section 28(4) an employee may not accumulate leave beyond 18 months without employer approval. Employment ended on 24 July 2020, so accrued leave was claimable only up to 2018. Records show 26 days taken in 2018 and 18 days in 2019, and the redundancy dues included leave pay, so the trial court's award was erroneous.
Legal principles established
#- Where employees are unionised, notice of redundancy must issue to the union (copied to the Labour Officer) and personal notice to affected employees, following section 40(1) of the Employment Act
- Consultation with the trade union on the reasons for and extent of an intended redundancy satisfies section 40(1) and is in line with ILO Convention No. 158, Recommendation No. 166 Article 13
- Claims accruing before a written contract of employment converted casual employment are a separate regime and subject to the limitation period under section 90 of the Employment Act
- On a first appeal, the court must re-evaluate, re-assess and analyse the entire record and determine whether the conclusions of the trial court should stand
Court orders
#- 1.The appeal is allowed
- 2.The severance pay is found under-calculated by Ksh.749 which is due to the respondent
- 3.Each party is to bear its own costs
- On appeal from
- Magistrates' Court (CMELRC), Mombasa
- CMELRC No. E007 of 2021
- Jurisdiction invoked
- First appeal from the trial court (magistrates' court) under the Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mini Bakeries (Mombasa) Limited v Ndirangu (Appeal E128 of 2023) [2024] KEELRC 947 (KLR)", Case Analysis (2024). Mombasa ELRC Appeal arising from Mombasa CMELRC No. E007 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/947/eng@2024-04-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.