Walter Onjiro Winam v Moses Munyui Ndung’u & another [2019] KEELRC 96 (KLR)
The bottom line
#A Kenyan court ruled that an employer who skips proper redundancy notice and paperwork must pay compensation, even after a labour office complaint.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the claimant is estopped from instituting this suit
- 2.Whether the termination of his employment contract was unfair and unlawful
- 3.Whether the reliefs sought should be granted
Key legal issues
#Whether the claimant was estopped from suing after payment of terminal dues assessed at the labour office
No estoppel; the respondent failed to prove a concluded settlement
Section 47(3) of the Employment Act preserves the employee's right to complain to the industrial court despite a labour office complaint. ADR settlements are encouraged under Article 159(2)(c), but here no written settlement agreement was signed, there was no proof of any meeting on 27.7.2016, and no proof the claimant signed the petty cash voucher for Kshs. 110,000. When the signature was disputed in the reply to defence, the respondent took no step to verify it. The settlement claim therefore failed on a balance of probability.
Whether the redundancy termination was fair and lawful
Unfair and unlawful for non-compliance with Section 40 of the Employment Act
The respondent admitted in evidence that it never served the claimant or the labour officer with one month's written notice of the redundancy, never issued a Section 77 notice, and paid accrued leave and severance only after the labour office complaint. Section 40(1)(b) requires written notice of at least one month to the employee and labour officer; (e) requires cash payment of accrued leave; (g) requires severance pay of not less than 15 days' pay per completed year. These breaches rendered the termination unfair under Sections 40 and 45.
What remedies flow from the unfair redundancy
Three months' salary as compensation under Section 49; other heads refused
In fixing compensation the court considered the claimant's four years of service without disciplinary issues, that he did not contribute to the termination through misconduct, and that the employer had already paid severance pay and one month's salary in lieu of notice. The overtime claim was rejected as exaggerated and lacking particulars; the days-worked claim was admitted as paid; leave was limited to the labour officer's assessment already paid.
Legal principles established
#- A complaint to a labour office under Section 47 of the Employment Act does not bar an employee from approaching the Employment and Labour Relations Court on the same issue or any infringement of statutory rights
- Where there is no signed written settlement agreement and the party alleging settlement fails to prove it, estoppel cannot be sustained and the employee may still sue
- Termination on account of redundancy without one month written notice to the employee and labour officer, payment of accrued leave and severance pay breaches Section 40 of the Employment Act and is unfair within Sections 40 and 45
Court orders
#- 1.Judgment entered for the claimant against the respondent for Kshs. 90,000 being 3 months' salary compensation under Section 49 of the Employment Act
- 2.Interest on the decreed sum at court rate from the date of judgment
- 3.The decreed sum to be paid less statutory deductions
- 4.Costs of the suit to the claimant
- 5.Claim for overtime dismissed
- 6.Claim for salary for days worked dismissed as settled and paid
- 7.Claim for leave days dismissed save for what was assessed by the labour officer and paid on 29.7.2016
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act (Sections 40, 45, 47, 49 and 77 invoked); Article 159(2)(c) of the Constitution on ADR considered
Relief refused
#Claim for overtime pay
It was exaggerated, lacking in material particulars and evidence
Claim for salary for the 6 days worked before termination
It was settled and the claimant admitted in evidence that he was fully paid
Claim for accrued leave days beyond what the labour officer assessed
The claim lacked particulars; only the labour officer's assessment paid on 29.7.2016 stands
Costs
Judgment for the claimant 'for the sum of Kshs. 90000 plus costs and interest at court rate from the date hereof' - costs awarded to the claimant
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
It is also clear that the fling of the complaint to the labour office does not bar the employee from approaching this court on the same issue or any other infringement of his statutory rights.
Consequently I enter judgment for the claimant against the respondent for the sum of Kshs. 90000 plus costs and interest at court rate from the date hereof. However, the decreed sum shall be paid less statutory deductions.
the termination of the claimants employment on account of redundancy was unlawful and unfair within the meaning of section 40 (1)(b)(e) & (g) of the Employment Act read with Section 45 of the Act.
the respondent has not proved on a balance of probability that the dispute herein was fully resolved and settled before the labour officer herein and as such the claimant is not estopped form instituting this suit.
In my view, one way of encouraging ADR is respecting and upholding any settlement agreements made between disputants.
Issues in the judgment
#Judgment does not state the case number, the parties' names, or the cause title; the claimant and respondent are referred to only descriptively
Multiple typographical errors, including dates and figures (e.g. '29.7.206' for the labour officer's letter and 'Kshs. 34615' versus '34650' for the leave assessment)
The judgment opens by listing the relief sought but the actual reliefs are never enumerated; relief is only evident from the evidence and disposition
Rachael Nancy Wangechi Munyeri, a Director of the respondent, is recorded as testifying as 'Cw2' rather than 'Rw2', an apparent labelling error
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Walter Onjiro Winam v Moses Munyui Ndung’u & another [2019] KEELRC 96 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/96/eng@2019-12-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.