Kijuu v Hilcrest Investments Limited (Cause 403 of 2017) [2022] KEELRC 4156 (KLR)
The bottom line
#A Kenyan court ruled a teacher's redundancy was fake and unfair because the employer skipped mandatory notices and consultation, awarding compensation and costs.
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 termination of the Claimant's employment was procedurally fair.
- 2.Whether the termination of the Claimant's employment was with substantive justification.
- 3.Whether the Claimant is entitled to the reliefs sought or any of them.
- 4.Who should bear the costs of this suit.
Key legal issues
#Procedural fairness of the redundancy
The termination was procedurally unfair; the required written general notice under section 40 was not given, the notice to the Labour Officer came after the termination and was not a 30-day notice, and there was no consultation.
The burden was on the Respondent to establish adherence to the statutory procedure. The meeting of 16th August 2016 did not amount to the written general notice contemplated by section 40, as evidenced by the Claimant's email requesting formalisation. Even taken as a notice, it was not a 30-day notice. The Labour Officer's notice of 25th August 2016 postdated the termination and was likewise not a 30-day notice. The court rejected the respondent's reliance on Mercy Wangari Muchiri v Total Kenya Limited and held consultation to be mandatory, noting the Githinji JA dissent quoted was contra to the majority.
Substantive justification of the redundancy
The termination was not substantively justified; the Respondent failed to discharge its burden under sections 45(2) and 47(5).
The Respondent did not demonstrate the selection criteria or the extent of the redundancy, and the Claimant's evidence that only she was targeted went unchallenged. The Respondent's own documents showed preparatory school enrolment was increasing, contradicting the alleged decline in enrolment. The subsequent advertisement of teaching vacancies, one withdrawn after the Claimant's counsel's letter, showed business proceeded as before, establishing the redundancy was not genuine.
Entitlement to remedies
Most reliefs refused; the Claimant was awarded a declaration of unfair and wrongful termination, two months' gross salary as compensatory relief under section 49(1)(c), interest and costs.
Severance pay had already been paid and admitted; the eight months' notice claim had no contractual or statutory basis and notice pay had been made; salary for the unexpired contract term is not payable in Kenya though the position merits reconsideration. Considering the procedural and substantive unfairness, the no-fault nature of the termination, the Claimant's legitimate expectation under the uncommenced contract, and the notice pay made, compensation was limited to two months' gross salary of Kshs. 883,180.
Legal principles established
#- The statutory procedure under Section 40 of the Employment Act is mandatory and leaves no residual discretion for the employer to operate outside it in redundancy terminations.
- Section 40 contemplates two mandatory separate and distinct notices of thirty days each in redundancy situations - a general notice and an individual termination notice.
- Consultation between employer and employee is a mandatory and pivotal component of a fair redundancy process in Kenya.
- An employer who remains opaque on the selection criteria for redundancy renders the termination unfair and unjustified.
- Where business proceeds as before after an employee's exit, the redundancy is not genuine.
Court orders
#- 1.A declaration that the termination of the Claimant's employment on account of redundancy was unfair and wrongful.
- 2.Compensation pursuant to section 49[1][c] of the Employment Act, 2007, Kshs. 883,180.
- 3.Interest at Court rates from the date of this judgement till full payment.
- 4.Costs of this suit.
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 (Sections 40, 43, 45, 47(5), 49(1)(c))
Relief refused
#Eight months' salary in lieu of proper notice of termination - KShs. 3,532,720.00
No provision in the contract or statute for eight months' notice; the statutory notice under section 40 is 30 days and notice payment was already made.
Twenty four months' salary premised on the fixed term contract - KShs. 10,598,160.00
This Court has stated before that salary for the remainder of the contract period is not payable in the Kenyan situation, though the position merits re-examination.
Damages equivalent to twelve months' salary - KShs. 5,299,080.00
The court instead awarded compensatory relief under section 49(1)(c) limited to two months' gross salary.
Severance pay at the rate of 15 days wages for each completed year of service - Kshs. 883,120
The Claimant had already been paid severance pay and did not dispute this at the hearing.
Costs
Costs of this suit 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.
In the upshot, judgement is hereby entered in favour of the Claimant in the following term; a) A declaration that the termination of the Claimant's employment on account of redundancy was unfair and wrongful. b) Compensation pursuant to section 49[1][c] of the Employment Act. 2007, Kshs. 883,180.
I am of the view that the statutory procedure at Section 40 of the Act, leaves no residual for the employer to operate outside the that procedure to whatever extent.
consultation between the employer and the employee[s] to be afiected is a pivotal component in the process leading to a termination of employment on account of redundancy
Where an employer remains opaque on the criteria of selection of those it identifies for or alleges to have been afiected by a decision for declaration of, redundancy, inexplicably, as was in this matter, the court cannot be ofi mark to conclude that the termination was not fair and justified.
What I see here is a situation where after the exit of the Claimant business proceeded as before in the learning Respondent institutions. The redundancy was not genuine.
Issues in the judgment
#Internal contradiction on dates of hearing/meeting - the meeting is referred to variously as 16th September 2016 and 16th August 2016 within the judgment.
Internal contradiction on dates of the demand letter - stated as 17th October 2018 though the context indicates 2016.
Discrepancy in dates of RW1's witness statement versus list of documents (11th August 2021 vs 7th June 2017) and clearance completion date stated as 24th August 2018 in context of 2016 termination.
The compensation figure appears as 883,180 in the judgment while the arithmetic from two months' gross salary of Kshs. 441,590 would yield 883,180; the pleaded severance figure was 883,120, a near-identical figure creating potential confusion.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- M’Kungu v Presiding Bishop Methodist Church in Kenya & another (Cause 1560 of 2017) [2023] KEELRC 2251 (KLR)[2023] KEELRC 2251 (KLR)28 Sept 2023followed
- Mbage v Hillcrest Investment Limited (Employment and Labour Relations Cause 2007 of 2016) [2023] KEELRC 2096 (KLR)[2023] KEELRC 2096 (KLR)27 Jul 2023followed
Cite this brief
#Cite this brief
Caselaw, "Kijuu v Hilcrest Investments Limited (Cause 403 of 2017) [2022] KEELRC 4156 (KLR)", Case Analysis (2022). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/4156/eng@2022-06-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.