Radar Limited v Mwadime & 8 others (Appeal E095, E089, E090, E091, E092, E093, E094, E096, E097 & E100 of 2024 (Consolidated)) [2024] KEELRC 2618 (KLR)
The bottom line
#Kenya's Employment Court ruled a security guard's redundancy was unfair because his employer never gave him notice before terminating him.
What this practically means
#Executive summary
#Key legal issues
#Procedural fairness in redundancy under Section 40 of the Employment Act
The termination was unfair: no notice of redundancy was issued to the affected employee, and the redundancy notices post-dated the actual termination
The court found the notice to the union and County Labour Commissioner was dated 30 November 2020, yet employment had ceased by certificate of service on 8 April 2020. A redundancy notice issued months after termination cannot validate it. Notice to the union and labour office must be followed by notice to the affected employees. Termination before completion of unpaid leave and receipt of notices was premature and contrary to Sections 40, 43 and 45.
Accrued leave pay under Section 28(4) of the Employment Act
Leave accrues only up to 18 months where no work records on leave allocation are produced
Taking annual leave is a right under Section 28. Where leave accrues over years, at the end of employment, absent proof of application and refusal, accrual is capped under Section 28(4). With no work records submitted on leave allocation, the claim goes back only 18 months, totalling 33 days, assessed at Kshs 19,602.
Overtime and house allowance where wages exceed minimum Wage Orders
The wage paid was over and above the gross minimum inclusive of house allowance and overtime; further payment would unjustly enrich the respondent
The applicable Wage Order for Voi set a minimum wage of Kshs 6,896.15 plus 15% house allowance; the respondent earned Kshs 17,820. The court found the wage covered house allowance and overtime, so payment beyond received wages would result in unjust enrichment.
Costs on appeal
The trial court's award of costs stands; each party bears own costs of the appeal
Award of costs is discretionary and the court should not interfere absent compelling reasons. Although the trial court should have given reasons, the circumstances leading to loss of employment, including the appellant's failure to submit key records, justified the award.
Legal principles established
#- Notice to the union and labour office under Section 40(1) of the Employment Act must be followed with notice to the affected employees
- Employer must produce work records under Section 10 of the Employment Act; failure to do so weakens denial of overtime claims
- A court should give reasons for awarding costs; costs do not automatically follow the cause under Section 12(4) of the ELRC Act
- Under the Regulation of Wages (Protective Security Services) Order, 1998, service pay is payable despite the employer paying statutory dues
Court orders
#- 1.Judgment in Voi MCELRC E012 of 2023 reviewed: compensation at 5 months gross wage Kshs 89,100
- 2.Notice pay Kshs 17,820
- 3.Service pay Kshs 53,460
- 4.Costs of the lower court proceedings awarded; for the Appeal, each party to bear its own costs
- 5.The judgment applies to Appeals No E089, E090, E091, E092, E093, E094, E096, E097 and E100 of 2024
- On appeal from
- Voi Magistrates' Court (MCELRC)
- Voi MCELRC No E012 of 2023 (and E006, E009, E010, E011, E013, E007, E004, E005 of 2023)
- Jurisdiction invoked
- First appeal from the magistrates' court under the Employment and Labour Relations Court Act (appeals to the ELRC under its appellate jurisdiction)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Radar Limited v Mwadime & 8 others (Appeal E095, E089, E090, E091, E092, E093, E094, E096, E097 & E100 of 2024 (Consolidated)) [2024] KEELRC 2618 (KLR)", Case Analysis (2024). ELRCA E095 of 2024 (consolidated with ELRCA E089, E090, E091, E092, E093, E094, E096, E097 and E100 of 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2618/eng@2024-10-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.