H. Young Company (E.A) Limited v Irene Wambui Wanjiru [2021] KEELRC 61 (KLR)
The bottom line
#A Kenyan court ruled that even a genuine redundancy is unfair if the employer skips the mandatory written notice to the worker and labour officer.
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 trial magistrate erred in finding that the appellant had no valid reason to terminate the respondent's employment
- 2.Whether the award of the equivalent of six months' salary as compensation was manifestly excessive
Key legal issues
#Whether the termination of the respondent's employment was lawful and fair
The termination was a redundancy carried out without the mandatory written notice under Section 40(1)(b) of the Employment Act to the employee and the labour officer, hence unprocedural and unfair under Section 45(2)(c)
The appellant adduced evidence that the respondent and three others were laid off because the workload at the Gatundu road project had drastically reduced, considering seniority, skills and first-in-last-out. Although redundancy was a valid operational reason, there was no evidence of written notice of at least one month to the respondent and the labour officer as Section 40(1)(b) mandates. The notice period also enables explanation of reasons and selection criteria and a hearing under Section 41. Failure of this mandatory procedure denies the employee fairness and invalidates the otherwise valid reason.
Whether the award of six months' salary as compensation was excessive
Yes; the trial court failed to consider applicable principles and comparable case law, and the award was reduced to three months' salary (Kshs 84,390)
Guided by Section 49(1)(c) and 49(4) of the Employment Act, the court considered that the respondent served only one year, was laid off for operational reasons, received all terminal benefits and a discharge certificate, and her employment was tied to the project's duration. Comparable authorities awarded 2-3 months' salary for similar or longer service. The trial court failing to consider these factors made the award amenable to being set aside.
Legal principles established
#- A first appellate court must reconsider and evaluate the evidence afresh while making due allowance for not having heard the witnesses
- An appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate, or the judge proceeded on wrong principles
- Written notice of intended redundancy to the employee and the labour officer at least one month before termination under Section 40(1)(b) of the Employment Act is mandatory, and failure to comply renders the termination unprocedural and unfair under Section 45(2)
Court orders
#- 1.The appeal is dismissed on the issue of the lawfulness and fairness of the termination; the finding that the termination was unlawful and unfair is upheld
- 2.The award of six (6) months' salary in compensation is set aside and substituted with an award of the equivalent of three (3) months' salary, Kshs 84,390 (28,130 x 3)
- 3.The Appellant to pay half the costs of the suit before the trial Court and this Court
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Magistrate's Court at Gatundu
- not stated (Employment cause)
- Jurisdiction invoked
- First appellate jurisdiction over the magistrate's court (Employment and Labour Relations Court); Employment Act, 2007
Relief refused
#Appellant's challenge to the finding of unlawful and unfair termination
The procedural requirements of Section 40 of the Employment Act were mandatory and were not complied with; no written notice of redundancy to the employee and the labour officer
Respondent's claim for notice pay, pay in lieu of leave, salary for days worked in July 2018 and severance pay
The trial court correctly found these terminal benefits had been paid, and the appeal court did not disturb that finding
Costs
The Appellant to pay half the costs of the suit before the trial Court and this Court.
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 Court therefore sets aside the award of six (6) months compensation and substitutes it with an award of the equivalent of three (3) month’s salary in compensation in the sum of Kshs (28,130 x 3) Kshs84,390.
In the final analysis, the appeal only succeeds to the extent that the award of compensation to the respondent payable by the Appellant is reduced to the equivalent three (3) months’ salary in the sum of Kshs 84,390.
The Appellant to pay half the costs of the suit before the trial Court and this Court.
The aforesaid procedural requirement is mandatory and it is aimed at preparing the targeted employee(s) for the hardship they are about to encounter upon being relieved of their job and continued income.
Failure to follow this procedure denies the targeted employee fairness and justice and thus invalidate the otherwise valid reason for declaration of redundancy.
Issues in the judgment
#Paragraph 27 states the Appellant failed to notify the respondent, but appears to attribute the employer's duty to the respondent; likely a typographical error
Paragraph numbering skips from 30 to 32 and from 32 to 34 in the judgment
Inconsistent dates of employment: respondent claimed employment in 2016 while the appellant's witness stated 2017, and the judgment elsewhere refers to service of one year
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "H. Young Company (E.A) Limited v Irene Wambui Wanjiru [2021] KEELRC 61 (KLR)", Case Analysis (2021). Appeal from Gatundu Principal Magistrate's Court (Employment cause), judgment delivered 17th August 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/61/eng@2021-12-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.