Siwa v Flamingo Horticulture [K] Limited (Cause 37 of 2019) [2024] KEELRC 2159 (KLR)
The bottom line
#A Kenyan court ruled an employer's redundancy was a fake process hiding an unfair firing, awarding the former Financial Controller 5½ months' salary.
What this practically means
#Executive summary
#Key legal issues
#Workplace racial discrimination
Claim dismissed; allegations unsubstantiated
The Claimant made no written complaint, did not invoke the Grievance Handling Policy, was cryptic at the recorded meeting, and called no corroborating witness. Having failed to establish primary facts raising a presumption of discrimination, the burden never shifted to the Respondent to justify differential treatment. The bouquet of flowers from Febry symbolized resolution of the grievance.
Validity of the ground of redundancy
Redundancy was a colourable exercise; no valid reason for termination
The Respondent held a farewell lunch for the Claimant before any Notice of Intended Redundancy, he had already cleared on 9th January 2018, his role was 'spread out' during sabbatical, and James Nicholson was appointed Project Accountant to a role the Claimant held or could hold, without reasonable explanation. The redundancy process was a sham to avoid the formalities of lawful termination.
Procedural fairness of the redundancy
Procedure was flawed; consultations were cosmetic
The Claimant had cleared with the Employer on 9th January 2018 before the Notice of Intended Redundancy of 9th February 2018, showing the decision to terminate had already been made. The 6th February 2018 consultation meeting was therefore meaningless and a charade, offending Sections 40, 41, 43 and 45 of the Employment Act.
Remedies
Statutory compensation of 5 ½ months' salary awarded; damages refused
Termination was flawed in substance and procedure and the Claimant did not contribute to it. With about 13 months of active service, an indeterminate contract to age 60, and mitigation through employment with Path Kenya International, compensation of 5 ½ months' gross salary (Kshs. 3,983,100) was appropriate.
Legal principles established
#- A claimant in a discrimination action must first establish facts from which discrimination may be presumed, upon which the burden shifts to the respondent to provide a legitimate explanation
- An employer's right to restructure must be exercised in accordance with Sections 40, 41, 43 and 45 of the Employment Act and the contract of employment
- Redundancy consultations must be genuine, not a charade or cosmetic process
Court orders
#- 1.It is declared that termination was unfair and unlawful
- 2.The Respondent shall pay to the Claimant compensation for unfair and unlawful termination, equivalent of 5 ½ months' salary at Kshs. 3,983,100
- 3.Costs to the Claimant
- Jurisdiction invoked
- Original jurisdiction of the Employment and Labour Relations Court under the Employment Act, Sections 40, 41, 43 and 45
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Siwa v Flamingo Horticulture [K] Limited (Cause 37 of 2019) [2024] KEELRC 2159 (KLR)", Case Analysis (2024). Statement of Claim filed 23rd January 2019 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2159/eng@2024-08-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.