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ELRCPartially AllowedCause No E004 of 2024· [2024] KEELRC 2207 (KLR)

Abere v Mini Bakeries (Nairobi) Limited (Cause E004 of 2024) [2024] KEELRC 2207 (KLR)

Employment and Labour Relations Court
19 September 2024
3,470 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled a redundancy unfair because the employer's notice took effect immediately instead of one month later, as the law requires.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent from 2004 and rising to Technical Manager on a gross salary of Kshs. 110,000, was declared redundant on 3rd June 2022, with termination taking effect on 4th June 2022. He sued, seeking declarations that the termination was unfair and discriminatory, 12 months' salary as compensation, and damages for breach of fair labour practices, fair administrative action and legitimate expectation. The Respondent admitted separating the Claimant through redundancy, citing Covid-19-driven financial constraints, and contended it complied with Section 40 of the Employment Act, having paid severance at 17 days per year of service, three months' pay in lieu of notice and leave dues. The court framed two issues: whether the redundancy amounted to unfair termination, and the remedies payable. It held that while consultation occurred and the Claimant, being the sole occupant of the abolished position, raised no selection-criteria issue, the redundancy notice took effect immediately rather than one month later as Section 40 mandates, and proof of notice to the labour officer was wanting; the termination was therefore unfair on procedure alone. On remedies, guided by the proportionality principle that awards must not enrich employees unjustly, the court granted two months' salary (Kshs. 220,000). The discrimination, unfair labour practice, fair administrative action and legitimate expectation claims were dismissed for want of evidence. The claim partially succeeded, with the Claimant awarded half the costs of the suit.

Key legal issues

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01

Whether the redundancy amounted to unfair termination

Holding

Termination by redundancy was unfair solely because the redundancy notice did not comply with the mandatory one-month notice period of Section 40 and it was not shown the labour officer received notice

Reasoning

The notice dated 31st May 2022 took effect on 4th June 2022, immediately rather than one month later as envisaged. The Respondent's explanation of a typographical error did not cure this. No proof of notice to the labour officer was adduced. However, consultation took place per the minutes of 3rd June 2022, and since the Claimant alone occupied the abolished position, no selection criteria issue arose. Unfairness was thus founded purely on improper notice.

p. 7
02

Whether the Claimant was entitled to 12 months' compensation and constitutional damages

Holding

Only two months' salary compensation awarded under Sections 49 and 50; discrimination and other constitutional claims dismissed for want of proof

Reasoning

The court weighed the Respondent's substantial compliance (3 months' pay in lieu of notice, 17 days' severance per year, leave pay) against the procedural defect, and guided by proportionality principles awarded two months' salary. The discrimination claim failed because the Claimant was the sole employee in the technical department and no basis for discrimination was pleaded or proved; the unfair labour practice, fair administrative action and legitimate expectation claims likewise failed for want of evidence.

p. 7

Legal principles established

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  • The notice requirements under Section 40 of the Employment Act are mandatory; a redundancy notice taking effect immediately rather than one month later renders the termination unfair on procedure
  • It is the employer's sole responsibility to comply with Section 40, including proof of notice to the labour officer
  • Where an employee is alone in the abolished department, the selection criteria on seniority, skill, ability and reliability do not arise against the employer
  • Remedies for unfair termination are compensatory and proportionate, not enriching

Court orders

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  1. 1.A declaration that the Claimant's termination on account of redundancy is unfair
  2. 2.An order that the Claimant be paid two months' salary for the unfair termination at Kshs. 220,000/-
  3. 3.The Claimant is awarded half the costs of the suit

Authorities

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Legislation

  • Employment ActSection 5
  • Employment ActSection 40(1)
  • Employment ActSections 49 and 50
  • Constitution of KenyaArticle 27
  • Constitution of KenyaArticle 41

Cases cited (10)

  • Prideinn Hotels & Investment Limited v Madzungu
    (Civil Appeal 88 of 2017) [2022] KECA 764 (KLR) (24 June 2022)
  • Peter Apolo Ochieng v. Amedo Centre Kenya Limited
    [2016] eKLR
  • Kenya Union of Domestic, Hotels, Educational Institutions, Hospital and allied Workers (Kudheiha) v Nairobi Hospital
    [2022] eKLR
  • Mercy Wangari Muchiri v Total Kenya Limited
    [2020] eKLR
  • Muraguri v Mpala Research Centre & 2 others
    (Cause E045 of 2022) [2024] KEELRC 440 (KLR) (28 February 2024)
  • Kenya Union of Journalists and allied workers v. Nation Media Group
    (2013) eKLR
  • Joseph Macharia Warutere & 3 Others v. Saab Kenya Ltd
    (2017) eKLR
  • Elizabeth Wakanyi Kibe v Telkom Kenya Ltd
    [2014] eKLR
  • D.K. Marete v Teachers Service Commission
    Cause No. 379 of 2009
  • Kenya Ports Authority v Munyao & 4 others
    (Petition E008 of 2023) [2023] KESC 112 (KLR) (Civ) (28 December 2023)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act and Article 41 of the Constitution (first-instance claim)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Abere v Mini Bakeries (Nairobi) Limited (Cause E004 of 2024) [2024] KEELRC 2207 (KLR)", Case Analysis (2024). Cause No E004 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2207/eng@2024-09-19

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.