Richard Clifford O Awino v United Millers Limited [2021] KEELRC 1445 (KLR)
The bottom line
#A Kenyan court upheld a redundancy as fair but ordered the employer to pay Ksh. 97,840 in unpaid terminal dues because it couldn't prove full payment.
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's termination by way of redundancy was for a valid reason and followed due process under section 40 of the Employment Act, 2007 and the CBA
- 2.Whether the claimant was unfairly terminated
- 3.What terminal dues the claimant was entitled to and what balance, if any, remains unpaid
Key legal issues
#Whether the termination on grounds of redundancy was fair and lawful
The termination was for valid reasons; the unfair termination claim failed because the respondent notified the union, gave notice under section 40(1) and the CBA, issued individual notice to the claimant and did not single him out.
The respondent experienced declining business, closing depots and silos and losing 50% productivity by mid-2016. It had a recognition agreement with the union, wrote to the union and County Labour Officer of the intended redundancy, met the union, and issued individual notice dated 30th January 2017 with the list of affected employees. The court held these steps satisfied section 40 and the CBA redundancy framework.
Adequacy of the terminal dues paid
The claimant was underpaid; on a monthly wage of Ksh. 63,069 his entitlement totalled Ksh. 261,193.75, leaving a balance of Ksh. 97,840 after the payment of Ksh. 163,353.75, subject to taxation.
The defence's figure of Ksh. 219,354 paid on 1st March 2017 was unsupported by any documentary evidence; the records attached to the defence showed payment of only Ksh. 163,353.75. Recomputing the dues (pay to 31st January 2017, notice pay, leave pay and six years' severance at 15 days per year) gave Ksh. 261,193.75, hence the balance awarded.
Legal principles established
#- A redundancy requires the employer to follow the procedure under section 40 of the Employment Act, including notice of the operational reasons, notice to the affected employee and payment of terminal dues.
- Where an employer alleges payment of terminal dues beyond what the claimant received, the burden lies on the employer to produce evidence of that payment.
Court orders
#- 1.Judgment entered for the claimant against the respondent for payment of Ksh. 97,840 subject to the provisions of section 49(2) of the Employment Act, 2007
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act, 2007; sections 40 and 49(2))
Relief refused
#Compensation for unfair termination of employment (Ksh. 756,828)
The court found the redundancy was for valid operational reasons and followed due process under section 40 of the Employment Act and the CBA
Costs
No costs order expressly made in the judgment.
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.
Accordingly, judgement hereby entered for the claimant against the respondent for payment of ksh.97, 840 subject to the provisions of section 49(2) of the Employment Act, 2007.
The court finds the respondent had a valid reasons leading to termination of employment and the case that there was unfair termination of employment has no basis.
Mr Ondimu testified that the claimant was paid ksh.219, 354 through his account on 1st March, 2017 but there is no evidence with regard to this payment.
Issues in the judgment
#The judgment is headed 'AT NAKURU' but states it was 'DELIVERED IN OPEN COURT AT NAIROBI'.
The claimant's monthly salary is stated inconsistently (Ksh. 63,090 / 63,069 / 63,066) within the judgment.
The dues tabulation lists notice pay twice at different figures, creating arithmetic ambiguity.
The judge's signature line appears defective ('M. MBAR?').
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Richard Clifford O Awino v United Millers Limited [2021] KEELRC 1445 (KLR)", Case Analysis (2021). Cause No. 103 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1445/eng@2021-01-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.