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ELRCPartially AllowedNot stated in judgment extract· [2023] KEELRC 2117 (KLR)

Ochieng v Tuko Media Limited (Cause E1070 of 2021) [2023] KEELRC 2117 (KLR)

Employment and Labour Relations Court
21 September 2023
LNLinnet Ndolo
2,784 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled that issuing only a termination letter is not a lawful redundancy, awarding an employee eight months' salary.

What this practically means

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Executive summary

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The Claimant, employed as a Cameraperson from 16th June 2016, challenged the termination of his employment on account of redundancy effective 2nd December 2021. He alleged the redundancy contravened Section 40 of the Employment Act: no one-month notice of the intended redundancy was given to him personally or to the Labour Officer, no consultation occurred, and no objective selection criteria were applied. He also alleged discrimination over denial of headphones and sought declarations, re-instatement or re-engagement, an injunction, general damages and costs. The Respondent maintained the redundancy arose from poor financial performance of the video department following the departure of a popular host, and that due process was followed, terminal dues were paid, and notice served on the Labour Office. It counterclaimed for an alleged overpayment of Kshs. 54,373.30. The court framed three issues: lawfulness and fairness of the termination, entitlement to remedies, and the counterclaim. Applying Thomas De La Rue, Kenya Airways and German School Society, it held the redundancy notice is separate and distinct from the termination notice; all the Respondent did was issue a termination letter, without prior redundancy notice or consultation. Selection based on previously unraised performance concerns and cost was also invalid. The termination was therefore unlawful and unfair. Re-instatement and re-engagement were declined given the Respondent's financial difficulties and time lapse; eight months' salary (Kshs. 853,704) was awarded with interest at court rates from judgment until payment in full. The counterclaim was dismissed for want of evidence. The Claimant received the costs of the case.

Key legal issues

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01

Compliance with Section 40 conditions for redundancy

Holding

Termination was unlawful and unfair because no redundancy notice or consultation preceded the termination; only a termination letter was issued

Reasoning

The court set out the Section 40(1) conditions and the authorities requiring one-month notice to the employee and Labour Officer plus consultation. All the Respondent did was issue a termination letter with payment; no prior redundancy notice with attendant consultation was issued, so substantive and procedural fairness failed.

p. 6
02

Objective selection criteria under Section 40(1)(c)

Holding

Selection based on performance (never previously raised) and cost of employment was not a valid objective criterion

Reasoning

The Managing Director testified selection was based on performance and cost. There was no evidence of prior performance concerns being raised, and cost alone cannot justify selection of an employee for redundancy, breaching Section 40(1)(c).

p. 6
03

Appropriate remedies

Holding

Re-instatement and re-engagement refused; eight months' salary compensation awarded

Reasoning

Considering the Respondent's financial difficulties, the lapse of time since termination and the Claimant's continued unemployment, the court awarded eight months' salary taking into account length of service and the Respondent's unlawful conduct.

p. 7
04

Respondent's Counterclaim for alleged overpayment of Kshs. 54,373.30

Holding

Counterclaim failed for lack of evidence and was dismissed

Reasoning

The Respondent asserted an overpayment but adduced no evidence to prove it; the counterclaim therefore failed.

p. 7

Legal principles established

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  • The redundancy notice under Section 40(1)(a)/(b) is separate and distinct from the termination notice under Section 40(1)(f), and a mere termination letter does not satisfy the redundancy notice requirement
  • A purposive reading of Section 40 requires the same one-month notice period whether or not the employee is a union member
  • Consultation is an essential part of the redundancy process implied in Section 40
  • Cost of keeping an employee cannot by itself be a valid selection criterion for redundancy

Court orders

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  1. 1.Declaration implied that termination by redundancy was unlawful and unfair (found and held)
  2. 2.Judgment entered for the Claimant in the sum of Kshs. 853,704 being eight (8) months' salary in compensation for unlawful and unfair termination
  3. 3.Interest at court rates from the date of judgment until payment in full
  4. 4.Costs of the case awarded to the Claimant
  5. 5.Respondent's Counterclaim dismissed
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (first-instance employment claim)

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, "Ochieng v Tuko Media Limited (Cause E1070 of 2021) [2023] KEELRC 2117 (KLR)", Case Analysis (2023). Not stated in judgment extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2117/eng@2023-09-21

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