Nyogensa v Tophill Hospital Brain and Spine Centre (Cause 41 of 2019) [2023] KEELRC 1484 (KLR)
The bottom line
#A Kenyan court ruled that redundancy of a single senior employee doesn't require full Section 40 procedures, but the worker still deserved notice pay, leave pay and severance.
What this practically means
#Executive summary
#Key legal issues
#Compliance with section 40 of the Employment Act in declaring redundancy
The respondent substantially complied: the claimant was paid in lieu of notice and, as a senior contract employee capable of bargaining his exit, the full rigours of section 40 (including notice to the Labour Office) were not mandatory
The court adopted the Court of Appeal's position in Kenya Revenue Authority v Menginya Salim Murgani that decision-making bodies may follow their own procedures provided fairness is achieved, and that redundancy of one or two senior employees need not follow the full rigours of section 40. The claimant was a fairly senior employee on contract terms. He received payment in lieu of notice; his entitlements were computed and offset against sums paid.
Entitlement to notice pay, leave pay and severance on redundancy
The claimant was entitled to one month's pay in lieu of notice, one month's salary in lieu of leave, and severance pay, totaling Kshs 266,250, from which the Kshs 158,176 already paid was deducted, leaving Kshs 108,074
Section 40 entitles a redundant employee to notice or pay in lieu, leave pay and severance pay. Based on the appointment letter gross pay of Kshs 106,500, the court calculated one month's notice pay, one month's leave pay, and 15 days' severance for the one completed year, totaling Kshs 266,250, less Kshs 158,176 paid.
Whether the claimant was entitled to overtime and pay for work on Sundays and public holidays
Rejected. The claimant signed the offer without amendment and produced no evidence of requesting overtime pay and being refused
A project is like piece rate work; the claimant as project manager negotiated or could negotiate his task. He signed the offer without amendments and did not produce evidence that he requested overtime pay and was turned down. The court cannot rewrite the contract to introduce terms never agreed upon yet within the parties' reasonable contemplation.
Legal principles established
#- Not every declaration of redundancy, especially involving one or two senior employees capable of bargaining their exit, must undergo the full rigours of section 40 of the Employment Act
- The decision to declare redundancy is the employer's alone, provided the employer substantially complies with section 40
- A court cannot rewrite a contract between parties by introducing terms the parties never agreed upon
Court orders
#- 1.The Court awards the claimant the sum of Kshs 108,074, being the amount calculated under paragraph 18 less Kshs 158,176 already paid to the claimant
- 2.The award shall attract interest at Court rates from the date of judgment until payment in full but subject to statutory deductions
- 3.The claimant shall have costs of the suit
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment disputes under the Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nyogensa v Tophill Hospital Brain and Spine Centre (Cause 41 of 2019) [2023] KEELRC 1484 (KLR)", Case Analysis (2023). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1484/eng@2023-06-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.