Thomas & Piron Grand Lacs Limited v Momanyi (Appeal E097 of 2023) [2024] KEELRC 2186 (KLR)

The employer alleged Covid-19-driven financial hardship but produced no financial statements, failing the validity test under section 43. No month's notice was issued to the union or the employee, no selection criteria were set down, and no consultation meeting was proved. Termination on account of redundancy must satisfy both a valid reason and fair procedure under sections 40, 41, 43 and 45.

Severance pay attaches to redundancy declarations regardless of unfairness, while section 49(1)(c) compensation addresses terminations for invalid reasons or by unfair procedure. The two serve different purposes, so both awards may stand. However, severance is calculated on complete years only: 15/30 x 35,000 x 3 years = Kshs 52,500, not the prorated formula the trial court used.

Citing Kenya Broadcasting Corporation v Geoffrey Wakio, an award of maximum 12 months' pay must rest on sound judicial principles, not be capricious or whimsical. The trial court gave no justification. Though the employer proved no financial hardship, the court took judicial notice that Covid-19 negatively impacted businesses, making a four-month award reasonable.

Leave is a statutory entitlement under section 28 of the Employment Act. Claims limited to the three years preceding the suit are not time-barred under section 90. As custodian of employment records under section 74, the employer had to produce evidence of leave taken; it could not demand that the employee seek court-ordered production.