Nyongesa v Rwandair Limited (Employment and Labour Relations Cause E966 of 2021) [2024] KEELRC 2697 (KLR)
The bottom line
#Kenya's Employment Court ruled that skipping mandatory redundancy steps—like notifying the labour officer—makes a termination unlawful, entitling the employee to compensation.
What this practically means
#Executive summary
#Key legal issues
#Whether the respondent followed the process in declaring the claimant's job redundant
The redundancy was unlawful and unprocedural; the respondent failed to comply with the mandatory requirements of section 40 of the Employment Act, including notice to the labour officer and consultation.
Section 40(1) of the Employment Act sets out mandatory pre-conditions to redundancy, including written notice to the labour officer and the employee, due regard to seniority, payment of leave, notice pay and severance. The notice dated 18th December 2020 took effect from 15th December 2020 and the respondent admitted it did not involve the labour office. There was no evidence of consultation after the 30-day notice period, and the claimant was served a termination notice on 14th January 2021 to leave the next day, with no indication of the selection criteria applied.
Whether the notices issued amounted to notices of intended redundancy or termination notices
The notices issued were treated as termination notices rather than notices of intended redundancy under section 40(1)(b) of the Employment Act.
Relying on the Court of Appeal authorities, the court distinguished notices of intended redundancy from notices of termination. The notice of intended redundancy of 15th December 2020 was followed by a termination letter dated 14th January 2021 served on the claimant to leave the following day, without further consultation. The court found the notices operated as termination notices and did not open the consultative process envisaged by section 40(1)(b).
Whether the claimant is entitled to the reliefs sought
Partially: severance pay, pay in lieu of notice and five months' general compensation were awarded; salary and unpaid leave claims were declined for want of proof.
Having found the termination unlawful, the court invoked section 49(1)(c) of the Employment Act to award five months' salary as general compensation, considering the claimant's service from 2015 to 2020. Severance pay for five completed years and one month's pay in lieu of notice were awarded as pleaded. However, the claims for salary until the last working day and unpaid leave days were declined because the figures were not specified, clear or proved by evidence. The award was subject to deduction of terminal benefits already paid.
Legal principles established
#- An employer must strictly comply with the mandatory requirements of section 40 of the Employment Act before declaring an employee redundant, including notification of the labour officer and consultation with the employee.
- Failure to notify the labour office, which is a key stakeholder in the redundancy process, renders the redundancy unlawful.
Court orders
#- 1.Severance pay for five (5) years awarded at Kshs.412,500/=
- 2.Pay in lieu of one month's notice awarded at Kshs.165,000/=
- 3.General compensation of five (5) months' pay under section 49(1)(c) of the Employment Act awarded at Kshs.825,000/= (Kshs.165,000 x 5)
- 4.Total award of Kshs.1,402,500/= less the Kshs.412,590/= already paid as terminal benefits, leaving a balance of Kshs.989,910/=
- 5.Costs of the suit awarded to the claimant plus interest at court rates at 14% from the date of judgment till full payment
- Jurisdiction invoked
- Employment and labour relations jurisdiction under Article 162(2) of the Constitution (not expressly cited in the excerpt); claim founded on Article 41 of the Constitution and sections 20, 28, 40, 41, 45 and 92 of the Employment Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nyongesa v Rwandair Limited (Employment and Labour Relations Cause E966 of 2021) [2024] KEELRC 2697 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2697/eng@2024-10-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.