Njihia & 2 others v Kenya Road Hauliers Limited (Cause E318 of 2023) [2024] KEELRC 1260 (KLR)
The bottom line
#Kenya's Employment Court ruled the company's redundancy unfair because it never proved it notified the union or labour officer, awarding the drivers months of salary.
What this practically means
#Executive summary
#Key legal issues
#Whether the redundancy complied with Section 40(1) of the Employment Act
It did not - no evidence of service of the redundancy notice on the union or labour officer and no evidence of consultations.
Since the Claimants were union members, the Respondent was obliged under Section 40(1)(a) to notify the union and local labour officer at least one month before the effective date. RWI testified a letter was emailed to the union but produced no evidence of service or acknowledgment. No evidence showed the notice reached the labour office. Further, no documentary evidence of consultations existed. The process therefore failed the statutory threshold.
Whether an unfair redundancy transitions to unfair termination attracting Section 49 compensation
Yes - the purported redundancy became an unfair termination entitling the Claimants to reliefs under the Employment Act.
Having found the process did not meet the Section 40(1) threshold, the court held the redundancy transitioned into unfair termination. Under Section 49(1)(c), compensation of up to 12 months' salary was warranted. Considering length of service (20, 5 and 7 years), absence of blameworthiness, no disciplinary record and limited mitigation, the court awarded 8, 5 and 6 months' salary respectively.
Date of employment of the 1st Claimant
The claim of 20 years' service remained unchallenged as the Respondent produced no controverting evidence.
Neither side adduced direct evidence of the 1st Claimant's date of employment. The NSSF statement suggested 1998 with a different employer, and no contract of service was availed. However, the employer bears the statutory duty to keep records, and having failed to produce controverting evidence, the Respondent could not displace the Claimant's unchallenged claim of 20 years' service.
Legal principles established
#- A fair redundancy process under Section 40(1) of the Employment Act requires notice to the union and the local labour officer, and failure of such notification renders the notice ineffectual.
- Consultations with the union are an implied integral requirement of a fair redundancy process.
- Section 40(1) of the Employment Act does not require two notices; courts have not found a second notice implied by law.
Court orders
#- 1.Declaration that termination of the Claimants employment on account of redundancy was unfair and unlawful.
- 2.Equivalent of 8 months, 5 months and 6 months' salary for the 1st, 2nd and 3rd Claimant respectively.
- 3.50% costs of this suit.
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Court Act over employment disputes
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Njihia & 2 others v Kenya Road Hauliers Limited (Cause E318 of 2023) [2024] KEELRC 1260 (KLR)", Case Analysis (2024). ELRC Cause No. E318 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1260/eng@2024-05-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.