[2019] KEELRC 1299 (KLR)
The court found that the respondent failed to comply with the statutory requirements for redundancy under section 40 of the Employment Act, 2007, specifically by not notifying the Local Labour Officer and not providing evidence of the selection criteria for redundancy. However, since the claimant only sought...
Source-derived case information.
- Citation
- [2019] KEELRC 1299 (KLR)
- Parties
- Claimant: Goretti Nyokabi Mburu; Respondent: Booth Extrusions Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 1031 of 2015
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- judgment for the claimant
- Judges
- MSA Makhandia
- Legal Topics
- Redundancy Procedure, Severance Pay, Termination of Employment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Goretti Nyokabi Mburu
Claimant
Booth Extrusions Limited
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the respondent complied with statutory redundancy procedures under section 40 of the Employment Act, 2007.
- 2 Whether the claimant is entitled to severance pay for termination on account of redundancy.
Ratio Decidendi
The court found that the respondent failed to comply with the statutory requirements for redundancy under section 40 of the Employment Act, 2007, specifically by not notifying the Local Labour Officer and not providing evidence of the selection criteria for redundancy. However, since the claimant only sought severance pay and not remedies for procedural defects, the court limited its award to severance pay. The respondent did not dispute the claimant's computation of severance pay, and the court accepted the amount claimed. Judgment was entered in favour of the claimant for severance pay and costs.
Court Disposition
judgment for the claimant
Orders
- The claimant is awarded severance pay of Kshs 351,195/-.
- The claimant is awarded costs of the suit.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI
CAUSE NO. 1031 OF 2015
GORETTI NYOKABI MBURU.........................................................CLAIMANT
VERSUS
BOOTH EXTRUSIONS LIMITED...............................................RESPONDENT
JUDGMENT
1. This Cause was heard on 29 May 2019. Goretti Nyokabi Mburu (Claimant) and Okoth MacOduol (Respondent’s Factory & Administration Manager) both testified.
2. It is not in dispute that the Claimant’s employment was terminated on account of operational requirements (decline in business) after a notice dated 1 December 2014.
3. In terms of section 40(1)(b) of the Employment Act, 2007, the Respondent should have sent a notice of intended redundancy to the Local Labour Officer within the area it (Respondent) operated.
4. If any such notice was sent to the Local Labour Officer, the Respondent did not prove it.
5. Similarly, there was no evidence as to the selection criteria used to select the Claimant for termination of employment on account of redundancy.
6. The Respondent, clearly did not comply with the letter and spirit of the law in terminating the Claimant’s employment.
7. However, the Claimant did not seek any remedy from the failure by the Respondent to comply with the law but only sought severance pay.
8. Pursuant to section 40(1)(g) of the Employment Act, 2007, the Claimant was entitled to severance pay equivalent to 15 days’ pay for each completed year of service.
9. The Claimant was employed by the Respondent on 2 December 1998 and had her employment terminated effective 31 December 2014, thus serving the Respondent for 16 years.
10. The Claimant computed the severance pay as Kshs 351,195/-, a computation which the Respondent did not interrogate or rebut.
11. The Court will therefore enter judgment for the Claimant as sought.
Conclusion and Orders
12. The Court finds and declares that the Claimant was entitled to and is awarded
(a) Severance pay Kshs 351,195/-
13. Claimant to have costs.
Delivered, dated and signed in Nairobi on this 21st day of June 2019.
Radido Stephen
Judge
Appearances
For Claimant Ms. Murugi instructed by Achillah T.O & Co. Advocates
For Respondent Mr. Gitonga instructed by Michuki & Michuki Advocates
Court Assistant Lindsey