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ELRCPartially AllowedNot stated in judgment

Marita & 8 others v Bakers Parlour (Maggies Hotel and Bakery Eldoret) (Cause 122 of 2017) [2023] KEELRC 979 (KLR)

Employment and Labour Relations Court
28 April 2023
ANAbuodha N.
1,339 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employer's redundancy was ruled unfair because it skipped mandatory notice and consultation steps, costing it terminal dues, interest and legal fees.

What this practically means

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Executive summary

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Nine claimants sued their former employer, alleging that their employment was terminated on April 2, 2016 on grounds of redundancy orally, without notice to them, their union or the labour officer, and without payment of terminal dues, contrary to sections 35, 36, 40, 49(c) and 51 of the Employment Act, 2007. They sought a declaration that the termination was unlawful, notice pay, leave dues, severance pay, overtime, underpayment, maximum compensation under section 49(c), certificates of service, costs and interest. The respondent filed a defence but its advocates ceased acting, and the claim proceeded ex parte. The 2nd claimant testified that they were terminated after refusing to leave their union, were never informed of the intended redundancy and received no terminal benefits. The court framed a single issue: whether the claimants proved entitlement to the reliefs sought. It held that redundancy terminations must comply with the conditions in section 40(1), that the respondent bore the burden of proving compliance and tabled nothing, and that the terminations were therefore unfair. The court awarded each claimant notice pay, house allowance, leave dues and severance pay as proved, together with costs and interest, and ordered issuance of certificates of service. It refused 12 months' compensation (inappropriate for redundancy) and the underpayment and public holiday claims for want of proof.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Claimants have proved that they are entitled to the reliefs they are seeking

Key legal issues

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01

Whether the redundancy termination was fair and lawful

Holding

Unfair - no evidence of compliance with Section 40(1) conditions (notice to union and labour officer, selection criteria, leave pay)

Reasoning

The court set out the statutory conditions in Section 40(1) of the Employment Act governing redundancy. The respondent never attended court and nothing was tabled to show those conditions were met before the claimants' employment was terminated. The burden lay on the respondent to demonstrate compliance, and it failed to discharge it.

p. 3
02

Entitlement to terminal dues

Holding

Notice pay, house allowance, leave dues and severance pay awarded where proved; 12 months' compensation, underpayment and public holiday claims refused

Reasoning

Having found the redundancy unfair, the court entered judgment for terminal benefits computed per claimant. However, compensation under Section 49(c) was withheld because termination was redundancy-based, and underpayment/public holiday claims failed for want of proof.

p. 3

Legal principles established

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  • An employer must comply with the conditions in Section 40(1) of the Employment Act before terminating a contract on account of redundancy, and bears the burden of proving compliance

Court orders

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  1. 1.A declaration that the Claimants' termination of employment by way of redundancy was unfair
  2. 2.Terminal benefits awarded to each claimant: Thomas Marita Kshs 300,581.56; Robert Migosi Kshs 302,407.38; Alex Masinde Kshs 28,483.90; George Omondi Kshs 20,310.95; Victor Onyango Ndeda Kshs 16,950.50; Edward Mukhasia Kshs 20,310.95; Wesley K. Tonui Kshs 20,310.95; Mark Too Kshs 20,310.95; Dorcas Simiyu Kshs 20,310.95
  3. 3.Costs of the suit to the claimants
  4. 4.Interest at court rates from the date of judgment till payment in full, subject to taxes and statutory deductions
  5. 5.The respondent shall issue each of the claimants with a certificate of service

The bench

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One judgment of the whole court — no separate or dissenting opinions.

AN
majority

Wrote the judgment

Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007

Relief refused

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12 months' compensation under Section 49(c)

Termination was on the basis of redundancy

p. 3

Underpayment of wages and public holidays allowance

Not proved; claimants did not present skill sets, minimum wage payable and actual wages for comparison

p. 3

Costs

Costs of the suit awarded to the claimants

Quotable passages

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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 instant case, nothing has been tabled before the court to show that the above conditions were met before the Claimants employment was terminated on account of redundancy.
p. 3Redundancy procedure
The burden of proof was on the Respondent to show that indeed, the provisions of Section 40(1) the Employment Act were met before the Claimant were terminated from employment.
p. 3Burden of proof in redundancy
A declaration that the Claimants termination of employment by way of redundancy was unfair
p. 3Final orders
The respondent shall issue each of the claimants with a certificate of service.
p. 5Final orders
Interest at Court rates from the date of judgment till payment in full. The award shall where applicable be subject to taxes and statutory deductions.
p. 5Final orders

Issues in the judgment

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minor

Delivery date not stated in the standard clause

minor

Respondent not named in the extracted judgment text

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Marita & 8 others v Bakers Parlour (Maggies Hotel and Bakery Eldoret) (Cause 122 of 2017) [2023] KEELRC 979 (KLR)", Case Analysis (2023). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/979/eng@2023-04-28

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.