Kashanga v Kenya Kazi Services Ltd (Cause 198 of 2014) [2014] KEIC 85 (KLR)
The bottom line
#A Kenyan employer lost Ksh. 189,425 for failing to prove it notified the labour officer and union before declaring a worker redundant.
What this practically means
#Executive summary
#Key legal issues
#Whether the redundancy amounted to unfair termination
It did, both for want of proof of service of the redundancy notice on the labour officer and the union, and because the selection criterion did not fairly apply to the claimant who was stationed at the Head Office.
The respondent produced no proof that the notice dated 1/9/2013 was served on the labour officer or the union, despite being challenged. The court required documentary evidence of service. Further, the selection criterion targeted personnel whose positions were terminated by clients, but the claimant was officially stationed at the Head Office where operations continued. His selection was therefore unfair, rendering the redundancy an unfair termination under Section 40.
Whether the claimant was entitled to pay in lieu of notice, compensation and leave pay
Yes. He was awarded one month's pay in lieu of notice, twelve months' gross salary as compensation, and pay for two months' unpaid leave.
Under Section 49 of the Employment Act, an unfairly terminated employee is entitled to compensation, pay in lieu of notice and accrued benefits. The notice pay was computed at Ksh. 12,629 per the payslip produced by the defence, compensation at twelve months' gross salary of Ksh. 151,548, and leave pay at Ksh. 25,258 for the two unpaid leaves in October 2012 and 2013, which the respondent failed to prove were compensated.
Whether severance pay was payable
No. The claim for severance pay failed because the redundancy was declared unfair, and service pay was in any event barred by the claimant's NSSF membership.
Having declared the redundancy an unfair termination, the court dismissed the severance claim. Alternatively, Section 35(6) of the Employment Act disqualifies employees who are members of the NSSF from receiving service pay, and the claimant was such a member, so the claim would fail on that footing as well.
Legal principles established
#- Redundancy carried out in breach of the procedural fairness under Section 40 of the Employment Act amounts to unfair termination.
- Service of a redundancy notice on the labour officer and the trade union must be proved by documentary evidence such as an acknowledgment, delivery book or postal certificate.
Court orders
#- 1.Judgment entered for the claimant in the sum of Ksh. 189,425
- 2.One month salary in lieu of notice of Ksh. 12,629
- 3.Twelve months gross salary as compensation for unfair termination of Ksh. 151,548
- 4.Leave pay for two years equivalent to two months' salary of Ksh. 25,258
- 5.Costs and interest on the decretal sum
- Jurisdiction invoked
- Employment and labour relations jurisdiction under the Employment Act (Sections 35, 40 and 49) and Sections 35(6) and 49
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kashanga v Kenya Kazi Services Ltd (Cause 198 of 2014) [2014] KEIC 85 (KLR)", Case Analysis (2014). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keic/2014/85/eng@2014-12-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.