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ELRCDismissedNot stated in the judgment· [2024] KEELRC 1393 (KLR)

Ndolo v Umma University (Appeal E097 of 2022) [2024] KEELRC 1393 (KLR)

Employment and Labour Relations Court
13 June 2024
1,631 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan court upheld a redundancy where the employer issued proper notice and consulted staff, confirming employees get only statutory dues like severance pay.

What this practically means

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Executive summary

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This is a first appeal to the Employment and Labour Relations Court at Nairobi against the judgment of Hon. Mrs. Gicheha (Chief Magistrate) in Kajiado CMEL No. 3 of 2020 delivered on 9th June 2022. The Appellant, who was the Claimant below, challenged the dismissal of his claim that his employment was unlawfully terminated by way of redundancy. He contended that no notice was issued to him as required by section 40(1)(a) and (b) of the Employment Act, that the notice to the Labour Office fell short of the 30-day threshold, and that the trial Magistrate erred in failing to award notice pay, overtime and leave dues, while improperly shifting the burden of proof. The Respondent maintained that the redundancy followed the outsourcing of security services; that a notice dated 8th December 2017 listing the Appellant was issued; that consultations were held; and that the employees, being non-unionisable, only required notice to staff and the labour officer. The Respondent relied on Kenya Airways Limited v Aviation & Allied Workers Union and on Cecilia Karuru Ngayu on costs. Nzioki Wa Makau J, applying the standard of a first appeal, found that the redundancy was procedurally lawful, that the Appellant was involved in the discussions and had no valid claim beyond severance pay of Kshs. 32,512.50 and pay for leave earned but not taken, and that he had declined to clear with the employer while retaining original documents. The Court found no reason to disturb the judgment below, dismissed the appeal as unmerited, and declined to award costs, allowing the Appellant to collect the sum awarded by the Chief Magistrate. Judgment dated and delivered at Nairobi on 13th June 2024.

Key legal issues

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01

Compliance with section 40 of the Employment Act in the redundancy

Holding

The redundancy was lawful; notice was issued on 8th December 2017 listing the Appellant, consultations took place, and the employees were not unionisable so notice to the staff and labour officer sufficed

Reasoning

Evidence was tendered before the trial court that the Respondent's management consulted and engaged the employees prior to the redundancy. The Appellant appeared on the list of staff in the notice dated 8th December 2017. The Respondent outsourced security services, so the Appellant's work of a particular kind ceased. The trial Magistrate correctly found the process lawful, and the Appellant's failure to clear with the employer undermined his claims.

p. 3
02

Entitlement to notice pay, overtime and leave dues

Holding

The Appellant proved no entitlement beyond severance pay (Kshs. 32,512.50, being 15 days' pay per year on his Kshs. 14,450/- wage) and pay for leave earned but not taken

Reasoning

The trial court awarded severance correctly. The claim for overtime failed because the security guards were compensated with off days, exceeding the statutory one off-day per week. Leave travelling allowance was never approved by the University Council. The Appellant declined to clear with the employer and retained original documents, and did not prove any further sums due.

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03

Duty of a first appellate court

Holding

The Court reassessed the evidence and law but found no reason to disturb the trial judgment, dismissing the appeal

Reasoning

Guided by the standard for a first appeal, the Court re-examined the record, noted the consultation evidence and the notice issued, and concluded the trial Magistrate's findings were supported by the evidence. The appeal lacked merit and was dismissed.

p. 3

Legal principles established

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  • On a first appeal, the court must reconsider the evidence and law and come to its own conclusion while making allowance for the fact that it neither saw nor heard the witnesses
  • An employee whose employment ends by lawful redundancy is entitled only to the statutory dues under section 40 of the Employment Act, including severance pay and pay for leave earned but not taken

Court orders

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  1. 1.The appeal is dismissed as unmerited
  2. 2.No costs awarded
  3. 3.The Appellant is to collect the sum awarded by the Chief Magistrate in her Judgment of 9th June 2022
On appeal from
Chief Magistrate's Court at Kajiado (Employment and Labour Relations)
Kajiado CMEL No. 3 of 2020
Jurisdiction invoked
First appellate jurisdiction over the Chief Magistrate's Court (Employment and Labour Relations) under the Employment and Labour Relations Court Act and Civil Procedure Act; specific provision not cited in the judgment

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, "Ndolo v Umma University (Appeal E097 of 2022) [2024] KEELRC 1393 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1393/eng@2024-06-13

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