Fursys Kenya Limited v Ondiege (Appeal E047 of 2021) [2023] KEELRC 2861 (KLR)
The bottom line
#Kenyan employers must give employees a 30-day notice of intended redundancy before termination — a termination letter or after-the-fact labour office letter does not count.
What this practically means
#Executive summary
#Key legal issues
#Compliance with section 40(1)(b) of the Employment Act on notice of intended redundancy
The termination letter of 7th August 2019 terminated employment with immediate effect and the letter to the Labour Office of 22nd August 2019 was post-termination; neither constituted the 30 days' notice of intended redundancy required.
Section 40(1)(b) requires written notice to the employee and the labour officer not less than 30 days before termination on account of redundancy. The purpose is to enable consultations. A termination letter effecting immediate termination, and a post-termination notification to the labour office, do not satisfy the provision. The trial court therefore correctly found the termination procedurally unfair.
Whether the trial court's findings of redundancy and unfair termination were contradictory
They are not contradictory; one concerns procedural fairness of the process, the other the effect of the unfair termination.
Redundancy is a legitimate ground for termination provided there is a valid and fair reason based on operational requirements and a fair procedure is followed. Section 45(2) on procedural and substantive fairness applies to redundancy terminations. The trial magistrate's wording referred to procedural fairness in the process and the resulting unfair termination.
Whether the 12 months' gross salary compensation award under section 49(1)(c) was excessive and unjustified
The award stands; the magistrate gave reasons and considered the section 49(4) factors, and no basis was shown to disturb the discretionary award.
The magistrate had discretion under section 49(1)(c) after considering the section 49(4) factors, and reasons were elaborately set out in his judgment. Following Mbogo v Shah, an appellate court will not interfere with an exercise of discretion absent misdirection on law or consideration of wrong or ignored matters. The employer's refusal to disclose selection-criteria material also showed lack of good faith.
Legal principles established
#- A notice under section 40(1)(b) must be a notification of an intended redundancy issued at least 30 days before termination; a termination notice with immediate effect, or a post-termination letter to the labour office, does not satisfy the provision.
- The rationale for the notice of intended redundancy is to open a consultative process between employer and employee; consultation is implied in section 40.
- A finding of redundancy combined with unfair termination is not contradictory, since redundancy is a legitimate ground but requires both substantive justification and fair procedure.
Court orders
#- 1.The Appeal is dismissed with costs to the Respondent
- On appeal from
- Chief Magistrates Court (CMEL Cause No. 1412 of 2019, Hon. Mr. David Obonyo Mbeja, SRM)
- CMEL Cause No. 1412 of 2019
- Jurisdiction invoked
- First appellate jurisdiction over the Magistrates' Court employment cause
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Fursys Kenya Limited v Ondiege (Appeal E047 of 2021) [2023] KEELRC 2861 (KLR)", Case Analysis (2023). Not stated in the extract (appeal from CMEL Cause No. 1412 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2861/eng@2023-10-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.