Kenya Chemical & Allied Workers Union v Kenya Flexogravure Limited (Cause E001 of 2022) [2024] KEELRC 1603 (KLR)
The bottom line
#A Kenyan court ruled that a mutually agreed redundancy waives legal notice requirements, but the employer still had to pay full CBA terminal dues.
What this practically means
#Executive summary
#Key legal issues
#Whether the claim on behalf of the late Habel Maube by his alleged widow was properly before the court
The claim was dismissed; the deceased was neither declared redundant nor terminated, the alleged widow produced no proof of marriage and no letters of administration, and the claim belonged in a separate cause.
The court found the deceased died in May 2020 while still an employee and was not part of the redundancy. The nature of the claim was distinct from the grievants' redundancy claims. Beyond an unsworn witness statement, no evidence of marriage or of authority to represent the estate (letters of administration) was tendered, so the claim could not stand within this cause.
Whether the redundancy of the five grievants complied with the law
The redundancy was effected by mutual consent between the claimant and the respondent; the parties waived the procedural steps of Section 40 and are estopped from claiming otherwise; the only outstanding obligation was payment of terminal dues.
The claimant objected to the initial redundancy proposal but the parties ultimately mutually agreed that only five employees would be declared redundant, with terminal dues payable by 30 September 2020 as committed in the respondent's letter of 4 September 2020. Having so agreed, the respondent need not have issued Section 40 notices; the failure was non-payment of the agreed dues, which gave rise to this cause.
Whether the CBA between the parties was still in force at the time of the redundancy
The CBA was valid and applicable because clause 29 provided that it would run for two years from 1 May 2013 and thereafter until amended by mutual agreement; no such amendment or replacement occurred, so no vacuum existed.
Rejecting the respondent's submission that the CBA expired after two years, the court relied on clause 29 of the CBA, which contemplated continued operation until amended by mutual agreement on one month's notice. This aligned with the Court of Appeal's reasoning in Mukiria Farmers Co-operative Society Ltd v Jacob Rukaria that an executed and registered CBA becomes part of the contract of service. The court distinguished the general rule on expiry where there is no extension provision.
What terminal dues were payable to the grievants upon the mutually agreed redundancy
The grievants were entitled to the benefits pleaded under clauses 16(f), 17, 18 and 19 of the CBA (notice, days worked, pro-rata and annual leave, severance pay, Leave Travelling Allowance and Baggage Allowance), being better than the Section 40 minimums, but not to any compensation for the redundancy.
Since a registered CBA forms part of the employment contract and its terms exceed the statutory minimums in Section 40 of the Employment Act, the court evaluated the claims on the CBA terms. The respondent adduced no evidence opposing the pleaded benefits, and its assertion from the bar that dues were settled was inadmissible for want of proof. Compensation claims were denied because the redundancy was consensual.
Legal principles established
#- A CBA executed and registered becomes part of the contract of service and binds the parties for the applicable period; where the CBA contains a clause continuing its operation until amended by mutual agreement, it subsists beyond the initial stated duration until so amended or replaced.
- Where parties mutually agree to a redundancy and thereby waive the procedural steps under Section 40 of the Employment Act, both parties are estopped from later claiming non-compliance with the procedure; only terminal dues remain payable.
- A litigant may claim benefits under a CBA where those terms are better than the statutory minimum under the Employment Act.
- Submissions or assertions made from the bar without any evidentiary support are inadmissible and must be disregarded.
Court orders
#- 1.A declaration that the redundancy of the five named grievants was effected and executed through mutual consent between the claimant and the respondent and both parties are estopped from claiming otherwise
- 2.Judgment entered in favour of the claimant, awarding terminal dues per grievant: Jonathan Wandera Kshs.550,630.35; Sharon Jebet Cherutich Kshs.318,720.00; Rhodah Naliaka Olanga Kshs.201,664.00; Caroline Vihenda Asunga Kshs.292,800.00; Jackline Munyasia Mujera Kshs.294,960.00
- 3.The claim by Joan Maube on behalf of the late Habel Maube dismissed with no order as to costs
- 4.The claimant is awarded the costs of the cause
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Court Act and the Employment Act, 2007 (specific enabling provision not cited in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Chemical & Allied Workers Union v Kenya Flexogravure Limited (Cause E001 of 2022) [2024] KEELRC 1603 (KLR)", Case Analysis (2024). Not stated in the judgment text. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1603/eng@2024-06-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.