Mutanda v Parbat Siyani Construction Ltd (Cause 541 of 2017) [2025] KEELRC 877 (KLR)
The bottom line
#A Kenyan court ruled a redundancy unfair because the employer couldn't show how it chose who to retrench and skipped required notices, awarding the driver Kshs.122,850.
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 termination of the claimant's employment on account of redundancy was procedurally fair under section 40 of the Employment Act
- 2.Whether the claimant was entitled to the reliefs claimed: notice pay, leave pay, severance pay, house allowance and general damages for wrongful dismissal
- 3.Whether the claimant contributed to his termination
Key legal issues
#Procedural fairness of redundancy termination under section 40 of the Employment Act
The termination was unfair in procedure because the selection criteria were not shown and the statutory month's notice to the employee and the Labour Officer was not given.
Both parties' witnesses agreed the termination was on account of redundancy due to reduced workload. However, the respondent did not demonstrate how the drivers selected for redundancy were determined, as required by section 40, which contemplates seniority in time and suitability for retention. Nor was the statutory month's notice given to the claimant or the area Labour Officer. The termination was therefore procedurally unfair, though the claimant did not contribute to it.
Quantum of remedies under section 49 of the Employment Act
The claimant was awarded two months' salary for unfair termination, one month in lieu of notice, one month leave pay, and severance pay for one year, totalling Kshs.122,850.00.
The court considered the section 49 factors: the claimant had served only one year and did not contribute to his unfair termination. On that basis it awarded two months' salary as compensation (Kshs.54,600.00), one month's notice pay (Kshs.27,300.00), one month's leave pay (Kshs.27,300.00) and severance for one year (Kshs.13,650.00), aggregating Kshs.122,850.00. The general damages claim of Kshs.327,600.00 was not granted in that amount.
Whether the salary was inclusive of house allowance under section 31 of the Employment Act
The claim for house allowance was declined because the pay was inferred to be consolidated and inclusive of reasonable housing provision.
The claimant pleaded no particulars or justification for the house allowance and gave no testimony on it. Although the payslip showed basic pay of Kshs.27,300.00, the claimant's own pleadings and prayers treated that figure as gross pay. There was no evidence of any grievance about house allowance during service, so the court inferred the agreed monthly pay was inclusive of reasonable housing provision under section 31 of the Act.
Legal principles established
#- In a redundancy, the employer must observe section 40 of the Employment Act, including the criteria of seniority in time and suitability for retention, and must give the statutory month's notice to the employee and the area Labour Officer.
- Where salary is pleaded and paid as gross pay without pleaded justification for house allowance, the court may infer that the pay was consolidated and inclusive of a reasonable housing provision under section 31 of the Employment Act.
Court orders
#- 1.The declaration that the termination was wrongful and unfair.
- 2.The respondent to pay the claimant the sum of Kshs.122,850.00 less PAYE by 30.04.2025 failing interest to run thereon at Court rates from the date of filing the suit until full payment.
- 3.The respondent to deliver the certificate of service by 30.04.2025.
- 4.The respondent to pay claimant's costs of the suit.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act (sections 40, 49, 31 referred to)
Relief refused
#House allowance at 15% of salary for each year worked (Kshs.69,615.00)
The claimant neither pleaded particulars and justification for the house allowance nor showed that the agreed salary excluded a housing provision; the court inferred the pay was consolidated.
General damages for wrongful dismissal as claimed (Kshs.327,600.00)
The court instead awarded compensation of two months' salary under section 49 of the Employment Act, given the one year of service and lack of contribution.
Costs
The respondent to pay claimant's costs of the suit.
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 not shown how the drivers put on redundancy were determined upon section 40 of Employment Act requiring considerations such as seniority in time and suitability for retentions.
The Court finds that the termination was unfair in procedure.
The respondent to pay the claimant the sum of Kshs.122,850.00 less PAYE by 30.04.2025 failing interest to run thereon at Court rates from the date of filing the suit until full payment.
The respondent to deliver the certificate of service by 30.04.2025.
The respondent to pay claimant’s costs of the suit.
Issues in the judgment
#The judgment states the claimant was served with a termination notice on 18.11.2017 in the claimant's case, but elsewhere records the termination notice as issued on 18.11.2016 with termination effective 18.12.2016; the court's own finding adopts 18.11.2016.
The memorandum of claim is stated to have been filed on 02.03.2017, yet the respondent's Reply is dated 29.06.2017, while the claimant's own averments describe a notice of 18.11.2017; internal chronology is inconsistent.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mutanda v Parbat Siyani Construction Ltd (Cause 541 of 2017) [2025] KEELRC 877 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/877/eng@2025-03-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.