[2021] KEELRC 1757 (KLR)
The court found that the Respondent failed to comply with the mandatory statutory requirements for redundancy under section 40 of the Employment Act, 2007, specifically by not issuing the required one-month written notice to both the Claimant and the local labour officer. This procedural lapse rendered the...
Source-derived case information.
- Citation
- [2021] KEELRC 1757 (KLR)
- Parties
- Claimant: Edwin Otieno Okech; Respondent: Vaghjiyani Enterprises Ltd
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Cause 24 of 2019
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- Claim allowed in part; termination declared unfair; monetary and non-monetary remedies awarded.
- Legal Topics
- Unfair Termination, Redundancy Procedure, Severance Pay, Notice Pay, Accrued Leave, Compensation for Unfair Dismissal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Edwin Otieno Okech
Claimant
Vaghjiyani Enterprises Ltd
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the Respondent complied with the statutory conditions prescribed by the Employment Act, 2007.
- 2 Whether the Claimant is entitled to the remedies sought in the Memorandum of Claim.
Ratio Decidendi
The court found that the Respondent failed to comply with the mandatory statutory requirements for redundancy under section 40 of the Employment Act, 2007, specifically by not issuing the required one-month written notice to both the Claimant and the local labour officer. This procedural lapse rendered the termination unfair. The Claimant was therefore entitled to severance pay, salary in lieu of notice, accrued leave for the last 18 months, and compensation for unfair termination. The court also held that the Claimant was entitled to a certificate of service as a statutory right. The Respondent's failure to challenge the Claimant's calculations or provide alternative figures led the...
Court Disposition
Claim allowed in part; termination declared unfair; monetary and non-monetary remedies awarded.
Orders
- Respondent to pay Claimant severance pay of Kshs 230,769/-.
- Respondent to pay Claimant salary in lieu of notice of Kshs 80,000/-.
Full Case Text
Judgment text and source record
51 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT KISUMU
CAUSE NO. 24 OF 2019
EDWIN OTIENO OKECH.................................CLAIMANT
v
VAGHJIYANI ENTERPRISES LTD...........RESPONDENT
JUDGMENT
1. This Cause was heard on 15 December 2020 when Edwin Otieno Okech (the Claimant) testified and closed his case.
2. Vaghjiyani Enterprises Ltd (the Respondent) indicated that it would not call any witness, and the Court directed the parties to attempt an out of court settlement. The parties could not agree.
3. The Claimant filed his submissions on 18 February 2021 in which he identified the Issues for determination as:
(i) Whether the Respondent complied with the statutory conditions prescribed by the Act?
(ii) Whether the Claimant is entitled to remedies sought in the Memorandum of Claim?
4. The Respondent filed its submissions on 18 March 2021.
5. The Court has considered the pleadings, evidence and submissions.
Unfair termination of employment
6. In terms of section 47(5) of the Employment Act, 2007, the Claimant must at the first instance prove that an unfair termination of employment occurred before the Respondent is called upon to justify the termination of employment.
7. The Claimant’s employment was terminated on account of redundancy. He testified that he was not given adequate notice and that the selection criteria of seniority, skills, ability and reliability were not considered.
8. Section 40 of the Employment Act, 2007, which guides redundancy, requires the employer to give at least one month of written notice to the employee and the local labour officer.
9. The Respondent did not give the Claimant 1-month notice. A notice was also not given to the local labour officer.
10. On that singular ground of notice, the Court finds that the termination of the Claimant’s employment on 12 September 2018 was unfair.
Remedies
Severance pay
11. One of the entitlements due to an employee whose contract is terminated on account of redundancy is severance pay at the rate of 15 days for each completed year of service.
12. The Claimant was employed by the Respondent in March 2013, and the separation was in September 2018. He served 6 complete years and 7 months, and the last salary was Kshs 80,000/-. He sought Kshs 230,769/- as severance pay.
13. The Respondent did not interrogate the computation or provide alternative calculations, and the Court will allow the head of relief.
Salary in lieu of notice
14. The Claimant’s contract provided for 1-month notice of termination of employment. Section 40 of the Employment Act, 2007 also provides for similar notice and not the 3-months prayed for. The Court will allow the equivalent of a 1-month salary in lieu of notice.
Accumulated leave
15. On account of leave, the Claimant sought Kshs 240,000/-.
16. Pursuant to sections 10(3) of the Employment Act, 2007, the Respondent should have set out in the termination notice the leave dues outstanding. It did not.
17. In consideration of the section and sections 10(3) & (7) and 28(4) of the Employment Act, 2007, the Court will allow the head of the claim but for the last 18 months of the contract equivalent to one and a half months' salary.
Compensation
18. The Claimant served the Respondent for about 7-years, and factoring in the length of service, the Court will award the equivalent of 5 months gross salary as compensation.
Certificate of Service
19. A certificate of service is a statutory entitlement, and the Respondent should issue one to the Claimant within 21 days.
Conclusion and Orders
20. The Court finds and declares that the termination of the Claimant’s employment on account of redundancy was unfair and awards him:
(i) Severance pay Kshs 230,769/-
(ii) Pay in lieu of notice Kshs 80,000/-
(iii) Accrued leave Kshs 120,000/-
(iv) Compensation Kshs 400,000/-
TOTAL Kshs 830,769/-
21. The Respondent to issue a certificate of service within 21 days.
22. Claimant to have costs and interest on the decretal sum from the date of judgment.
DELIVERED THROUGH MICROSOFT TEAMS, DATED AND SIGNED IN KISUMU ON THIS 12TH DAY OF MAY 2021.
Radido Stephen, MCIArb
Judge
Appearances
For Claimant Mr Mwesigwa instructed by Behan & Okero Advocates
For Respondent Ms Namusubo instructed by Otieno, Yogo, Ojuro & Co. Advocates
Court Assistant Chrispo Aura