Siwa v Flamingo Horticulture [K] Limited (Cause 37 of 2019) [2024] KEELRC 2159 (KLR)
The bottom line
#A Kenyan court ruled an employer's redundancy was a fake process hiding an unfair firing, awarding the former Financial Controller 5½ months' salary.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Claimant was discriminated against at the workplace
- 2.Whether his contract was terminated on valid grounds
- 3.Whether termination was fairly executed
- 4.Whether he merits compensation, damages, costs and any other suitable remedy
Key legal issues
#Workplace racial discrimination
Claim dismissed; allegations unsubstantiated
The Claimant made no written complaint, did not invoke the Grievance Handling Policy, was cryptic at the recorded meeting, and called no corroborating witness. Having failed to establish primary facts raising a presumption of discrimination, the burden never shifted to the Respondent to justify differential treatment. The bouquet of flowers from Febry symbolized resolution of the grievance.
Validity of the ground of redundancy
Redundancy was a colourable exercise; no valid reason for termination
The Respondent held a farewell lunch for the Claimant before any Notice of Intended Redundancy, he had already cleared on 9th January 2018, his role was 'spread out' during sabbatical, and James Nicholson was appointed Project Accountant to a role the Claimant held or could hold, without reasonable explanation. The redundancy process was a sham to avoid the formalities of lawful termination.
Procedural fairness of the redundancy
Procedure was flawed; consultations were cosmetic
The Claimant had cleared with the Employer on 9th January 2018 before the Notice of Intended Redundancy of 9th February 2018, showing the decision to terminate had already been made. The 6th February 2018 consultation meeting was therefore meaningless and a charade, offending Sections 40, 41, 43 and 45 of the Employment Act.
Remedies
Statutory compensation of 5 ½ months' salary awarded; damages refused
Termination was flawed in substance and procedure and the Claimant did not contribute to it. With about 13 months of active service, an indeterminate contract to age 60, and mitigation through employment with Path Kenya International, compensation of 5 ½ months' gross salary (Kshs. 3,983,100) was appropriate.
Legal principles established
#- A claimant in a discrimination action must first establish facts from which discrimination may be presumed, upon which the burden shifts to the respondent to provide a legitimate explanation
- An employer's right to restructure must be exercised in accordance with Sections 40, 41, 43 and 45 of the Employment Act and the contract of employment
- Redundancy consultations must be genuine, not a charade or cosmetic process
Court orders
#- 1.It is declared that termination was unfair and unlawful
- 2.The Respondent shall pay to the Claimant compensation for unfair and unlawful termination, equivalent of 5 ½ months' salary at Kshs. 3,983,100
- 3.Costs to the Claimant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original jurisdiction of the Employment and Labour Relations Court under the Employment Act, Sections 40, 41, 43 and 45
Relief refused
#General damages (including damages for workplace discrimination)
Claimant failed to substantiate allegations of discrimination and supplied no evidence justifying damages outside statutory compensation
Bonus payment
No such prayer was pleaded
Interest
No prayer for interest was pleaded
12 months' salary compensation
Award limited to 5 ½ months given short service of about 13 active months and mitigation through alternative employment
Costs
Costs to the Claimant.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
It is declared that termination was unfair and unlawful.
The Respondent shall pay to the Claimant, compensation for unfair and unlawful termination, equivalent of 5 ½ months’ salary at Kshs. 3,983,100.
It is clear that the die was cast with the farewell lunch. The redundancy process that the Claimant was subjected to on return, was a sham.
There is absolutely, no reasonable explanation from the Respondent, why James Nicholson was appointed to a job which the Claimant held, or which the Claimant could hold, even before a Notice of Intended Redundancy issued.
The allegations of racial and other forms of discrimination made by the Claimant, against the Respondent, and against Chris Febry in particular, are rejected. Damages for workplace discrimination are not merited.
Costs to the Claimant.
Issues in the judgment
#The judgment alternates between 2017 and 2018 for key redundancy dates, and records an inconsistent termination effective date
Internal inconsistency between the Claimant's pleaded appointment of the replacement expatriate with effect from 1st February 2018 and the Respondent's evidence of appointment on 7th March 2018
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Siwa v Flamingo Horticulture [K] Limited (Cause 37 of 2019) [2024] KEELRC 2159 (KLR)", Case Analysis (2024). Statement of Claim filed 23rd January 2019 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2159/eng@2024-08-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.