Chege v Tribeka Business Solutions Limited & another (Employment and Labour Relations Cause 888 of 2019) [2023] KEELRC 3195 (KLR)
The bottom line
#A Kenyan court ruled that even a genuinely necessary redundancy is unlawful if the employer skips the strict procedure in section 40 of the Employment Act.
What this practically means
#Executive summary
#Key legal issues
#Whether the termination on account of redundancy was wrongful and unlawful
Substantively justified (financial constraints confirmed by CW1) but procedurally flawed: no notice to the labour office, no selection criteria disclosed, no meeting, and no severance paid; termination unfair and unlawful.
The court applied Kenya Airways v Aviation & Allied Workers Union, holding that section 40(1) must be read with sections 43, 45 and 47(5): the employer must prove a valid and fair reason based on operational requirements and fair procedure. Financial hardship satisfied the substantive test, but the Respondents failed to serve the labour office with notice, disclose selection criteria, convene a meeting, or pay severance, breaching section 40.
Burden of proof where Respondents adduce no evidence
The Respondents, as custodians of employment records, failed to rebut the Claimant's unchallenged evidence; salary arrears awarded as claimed.
The Respondents filed a response and submissions but produced no witness or documents. The Claimant's testimony that all employees had gone unpaid for almost six months was uncontroverted. The court held the Respondents had not proved otherwise and awarded salary arrears of Kshs 216,875 and leave at 21 days per her contract.
Entitlement to service pay
Service pay refused because the Claimant was a member of NSSF whose deductions were remitted.
CW1 testified that the Respondents were remitting her NSSF deductions and that she was a beneficiary of NSSF and NHIF. The court held that an employee who is a member of NSSF does not qualify for service pay, and declined that head of relief.
Legal principles established
#- An employer must both justify redundancy on valid operational requirements and strictly comply with the procedure in section 40 of the Employment Act; failure to notify the labour officer, provide selection criteria and pay severance renders the termination unfair.
- To sustain a redundancy the employer must show the termination is attributable to the redundancy - that the employee's services have been rendered superfluous or the office/job abolished.
Court orders
#- 1.Award of salary in arrears from January 2019 to June 2019 of Kshs 216,875/-
- 2.Award of severance pay at 15 days equivalent for the 2 years worked of Kshs 85,462/-
- 3.Award of one-year equivalent leave at 21 days as per her contract of Kshs 59,823
- 4.Award of unfair termination compensation equivalent to 2 months' salary amounting to Kshs 170,924/-
- 5.Total award of Kshs 533,084/04 with costs and interest at court rates from date of judgment till full payment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment and labour relations claims (Employment Act; claim for unfair termination and terminal dues)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Chege v Tribeka Business Solutions Limited & another (Employment and Labour Relations Cause 888 of 2019) [2023] KEELRC 3195 (KLR)", Case Analysis (2023). Not stated in the judgment (Memorandum of Claim dated 15th November 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3195/eng@2023-12-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.