Simon Kiprop Mulwo v Valley Confectionary Limited [2020] KEELRC 1045 (KLR)
The bottom line
#A Kenyan court upheld a security guard's redundancy because his employer gave proper notice and followed the Employment Act's required procedure.
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 respondent was a different legal entity from Valley Bakery Limited or a continuation by change of name
- 2.Whether the termination of the claimant's employment on account of redundancy complied with section 40 of the Employment Act, 2007 and was therefore fair
- 3.Whether the claimant is entitled to three months' pay in lieu of notice
- 4.Whether the claimant is entitled to leave earned for 14 years and other terminal dues
Key legal issues
#Whether the termination on account of redundancy was unfair
Not unfair - notice was issued and the claimant was allowed leave and paid dues
The court held that redundancy terminates employment at no fault of the employee but is lawful if section 40 of the Employment Act, 2007 is followed. The claimant was issued notice on 31st March, 2012 taking effect on 30th April, 2012, allowed to proceed on leave, and paid Ksh.30,000. With notice issued and compliance with section 40, the termination had justification and no unfair termination arose.
Whether the claimant worked for the respondent for 14 years (continuity from Valley Bakery Limited)
No - Valley Bakery Limited and the respondent are distinct legal entities
The claimant's employment with the respondent commenced by written letter dated 30th April, 2011, while his employment with Valley Bakery Limited ended by notice of the same date, as shown by his own Certificate of Service. The defence that the two entities are distinct stood true, so years of service with Valley Bakery could not be attributed to the respondent.
Whether the claimant was owed any outstanding dues
No outstanding claims remained unpaid
The claimant had taken his 28 days' annual leave per the termination notice and been paid Ksh.30,000. Notice pay was already covered by the notice issued. The court therefore found no outstanding claims and dismissed the suit with costs to the respondent.
Legal principles established
#- An employer carrying out a redundancy must comply with the mandatory provisions of section 40 of the Employment Act, 2007, failing which the termination is unfair
- Where services are found superfluous, notice is issued and section 40 is complied with, there is no unfair termination
Court orders
#- 1.The claims made are dismissed
- 2.Costs to the respondent
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, 2007 (first-instance employment cause)
Relief refused
#Declaration that employment was unfairly and unlawfully terminated; reinstatement or damages for unfair termination
The redundancy notice issued and section 40 complied with; termination had justification
Three months' notice pay
One month's notice dated 31st March, 2012 effective 30th April, 2012 had already issued
Leave earned for 14 years
Employment with the respondent commenced on 30th April, 2011; any dues owed by Valley Bakery Limited should have been pursued against that entity
Costs
Costs to the respondent.
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.
The employer faced with a redundancy must follow the mandatory provisions of section 40 as otherwise any termination of employment arising thereof is unfair.
It is therefore lawful and permissible that where the employee services are found superfluous, there is notice and the employer complies with the mandatory provisions of section 40 of the Employment Act, 2007 in address the same, there is no unfair termination for the employee laid off and issued with notice terminating employment.
Notice having issued, the claim for 3 month pay in lieu of notice does not suffice.
Accordingly, the claims made are hereby dismissed. Costs to the respondent.
Issues in the judgment
#Internal inconsistency in dates of employment - claimant said he was employed in May 2007, defence witness said 1st May 2007, and respondent's HR manager testified the claimant was employed on 30th April, 2011 and terminated on 31st March, 2012 while the termination notice records employment ending 30th April, 2012
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Simon Kiprop Mulwo v Valley Confectionary Limited [2020] KEELRC 1045 (KLR)", Case Analysis (2020). Cause No. 122 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1045/eng@2020-05-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.