Muasa v China Road And Bridge Corporation (K) (Cause 2115 of 2016) [2024] KEELRC 1742 (KLR)
The bottom line
#A Kenyan court ruled a redundancy unlawful because the employer posted a notice board instead of serving individual notices, awarding the worker notice pay, severance and compensation.
What this practically means
#Executive summary
#Key legal issues
#Whether the termination of the Claimant's employment was unlawful
The termination was on account of redundancy and was both substantively and procedurally flawed, hence unlawful and unfair under section 45 of the Employment Act.
The court found that despite the Respondent avoiding the word redundancy, the termination was for reduced workload as the project neared completion. No report showed the project section was complete, so the reason was not valid under section 43. Procedurally, the notice was posted on a board and not served individually, and section 40 requirements of one month's notice to the employee and union and notice to the Labour Office were not met.
Whether the Claimant was entitled to compensation, notice pay and severance pay
The Claimant was awarded two months' salary as compensation for unfair termination, one month's salary in lieu of notice, and 15% severance pay for one completed year of service.
Considering the Claimant's service of about one year and two months and that the Respondent had paid part of the terminal dues (service and leave pay), the court awarded two months' compensation under section 49. Notice pay of one month was due under the Act, and severance at 15% of salary for one completed year of service was payable.
The Claimant's monthly salary for computation purposes
The court relied on the payslips, fixing basic pay plus house allowance at Kshs 19,093, excluding overtime.
There was a discrepancy between the parties on the monthly salary and the employment contract did not state it. The court relied on the payslips showing basic pay of Kshs 15,912 plus house allowance of about Kshs 3,181, totalling Kshs 19,093, excluding overtime as not part of regular pay.
Legal principles established
#- Even in termination on account of redundancy, the reason must be valid under section 43 of the Employment Act and the employee must be given a right to be heard under section 41.
- Posting a redundancy notice on a notice board for a workforce of over 500 employees, without individual service, does not satisfy section 40 of the Employment Act.
- General damages are not ordinarily awarded in unfair termination cases except upon proof of special circumstances.
Court orders
#- 1.One month salary in lieu of Notice of Kshs 19,093/=
- 2.Severance pay of Kshs 2,863/=
- 3.Compensation for unfair termination of two months' salary, Kshs 38,186/=
- 4.Total award of Kshs 60,142/=
- 5.Costs of the suit to the Claimant
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act and Labour Relations Court Act (as first-instance employment cause; no specific provision quoted)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Muasa v China Road And Bridge Corporation (K) (Cause 2115 of 2016) [2024] KEELRC 1742 (KLR)", Case Analysis (2024). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1742/eng@2024-07-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.