Ngalla v ISL Kenya Limited (Cause 1210 of 2017) [2024] KEELRC 1256 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the purported redundancy complied with section 40 of the Employment Act
There was no redundancy; the Respondent did not comply with section 40 as the notice to the labour officer was issued after termination, no notification was given to the Claimant, and no severance pay was paid
The court found the termination occurred on 7th March 2017 without notice, while the letter to the labour officer was dated 31st March 2017, after termination. The Respondent did not state the extent of the redundancy, did not notify the Claimant under section 40(1)(b), and paid service pay rather than severance pay. There was no proof any other employee was affected. The mandatory requirements of sections 40, 41 and 43 were therefore not met.
Whether the termination was unfair
The termination was unfair; the Respondent neither carried out a lawful redundancy nor complied with sections 41 and 43 on termination
Having found no valid redundancy, and no compliance with sections 41 and 43 on procedure and reasons for termination, the court concluded the Claimant's employment was unfairly terminated and that the Respondent failed to prove any redundancy was carried out.
Entitlement to terminal dues including leave and service pay
Claimant awarded pay for unpaid days worked, 1.75 days' leave per month for 18 months, and 15 days' service pay for the one completed year, since the Respondent did not remit NSSF
The Respondent produced no proof of payment for September 2016 days worked, and no evidence the Claimant took leave. Because the Respondent did not pay NSSF for the Claimant, service pay was due for each completed year. Claims for prorated service pay and house allowance failed on statutory and contractual grounds.
Legal principles established
#- The conditions precedent to a lawful redundancy under section 40 of the Employment Act are mandatory, and the notice to the labour officer must precede the termination
- An employer who alleges redundancy must prove it; payment of service pay instead of severance pay indicates termination on grounds other than redundancy
- Failure to keep employment records as required by Part X of the Employment Act means the employee's evidence is to be believed
Court orders
#- 1.Declaration that the termination of the Claimant's employment was unfair
- 2.Award of Kshs. 3,388 for days worked in September 2016
- 3.Award of Kshs. 15,246 in lieu of annual leave for 18 months
- 4.Award of Kshs. 7,260 service pay for one full year
- 5.Award of Kshs. 87,120 being 6 months' salary as compensation for unfair termination
- 6.Total award of Kshs. 113,014 against the Respondent
- 7.Respondent to bear the Claimant's costs of the suit
- 8.Decretal sum to attract interest at court rates from the date of judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment and labour relations claims under Article 162(2) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ngalla v ISL Kenya Limited (Cause 1210 of 2017) [2024] KEELRC 1256 (KLR)", Case Analysis (2024). Claim dated 24th June 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1256/eng@2024-05-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.