1. Clementina Awuor, Rael Akinyi Abuoro and Linnet Miguya (the Appellants) sued Tom Mboya Labour College (the Respondent) before the Senior Resident Magistrates Court alleging unfair termination of employment and breach of contract.
2. In a judgment delivered on 26 February 2024, the Senior Resident Magistrate found that the Appellants had not proved unfair termination of employment on account of redundancy.
3. However, the Senior Resident Magistrate awarded the Appellants terminal dues (salary in lieu of notice, accrued leave and severance pay).
4. The Appellants were dissatisfied with the finding on unfair termination of employment, and they lodged a Memorandum of Appeal with the Court on 11 March 2024, contending:
(i) The Learned Trial Magistrate erred in law and fact in failing to hold that there was no fair and/or valid reason to terminate the Appellants' employment.
(ii) The Learned Trial Magistrate erred in law and fact by considering documents not produced as evidence but only introduced at the submission stage thus treating submissions as evidence.
(iii) THAT the Learned Trial Magistrate erred in fact and law in failing to appreciate the provisions of section 40 of the Employment Act which is explicit in terms and mandatory in tone thereby arriving at an erroneous decision based on extraneous facts not forming part of the proceedings.
(iv) THAT the Learned Trial Magistrate erred in fact and law in addressing the main issue of redundancy in a narrow manner that consultation with the employees is not mandatory during the process preceding redundancy while relying on an authority that has already been overturned by the Court of Appeal.
(v) The Learned Trial Magistrate erred in fact and law in holding that the Appellants were reasonably compensated after the termination whereas the redundancy was unfair and unlawful hence not justified in the circumstances.
(vi) The Learned Trial Magistrate erred in fact and law in failing to find that the Respondent did not follow the laid down procedure as stipulated in section 40 of the Employment Act.
(vii) The Learned Trial Magistrate erred in fact and law in making findings which were a total misdirection and legal deviations from the express provisions of the law and known legal principles.
(viii) The Learned Trial Magistrate erred in fact and law in failing to find that the evidence of the Appellants was uncontroverted by the Respondent having failed to call any witnesses to testify thus the pleadings remained unsubstantiated.
5. The Appellants filed a Record of Appeal on 22 May 2024, and pursuant to Court directions on 4 June 2024, they filed their submissions on 7 June 2024.
6. The Respondent purported to file Grounds of Opposition to the Memorandum of Appeal and submissions on 19 June 2024.
7. The Court has considered the Record of Appeal and submissions.
Role of the Court on a First Appeal
8. In Abok James Odera t/a A. J. Odera & Associates v John Patrick Machira T/A Machira & Co. Advocates (2013) eKLR, the Court of Appeal stated as follows regarding the duty of a first appellate Court:
This being a first appeal, we are reminded of our role as a first appellate court namely, to re-evaluate, re-assess, and reanalyse the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way.
9. This Court will keep the interdict in mind.
Unfair termination of employment
10. Section 40 of the Employment Act, 2007 undergirds termination of employment on account of redundancy.
11. Some of the elements an employer should satisfy to meet the legal threshold include an advance written notice of intention of at least 30 days to declare redundancies as well as a written notification to the local Labour Officer.
12. The Appellants testified that they were informed of the termination of their contracts through phone calls on 5 December 2020.
13. The Respondent did not lead any evidence to controvert the testimony by the production of copies of written notices to the Appellants or the local Labour Officer.
14. Further, sections 43 and 45 of the Employment Act places an obligation on the employer to demonstrate that a redundancy situation was necessary. The Respondent did not call any witness to testify as to the operational reasons or economic hardship it faced due to the COVID-19 public health pandemic to justify terminating the Appellants’ contracts.
15. The Court has no hesitation in finding that the Senior Resident Magistrate fell into errors of both fact and law in rejecting the Appellants' case on unfair termination of employment.
Compensation
16. The 1st and 2nd Appellants served the Respondent for 5 years while the 3rd Appellant served for 10 years. The 1st Appellant was earning a gross salary of Kshs 19,305/-, the 2nd Appellant Kshs 19,305/-, and the 3rd Appellant Kshs 25,000/-.
17. Section 49(4) of the Employment Act, 2007 outlines the factors a Court should consider in awarding compensation.
18. Considering the Appellants' length of service, the Court is of the view that the 1st and 2nd Appellants deserve the equivalent of 4 months’ gross salary as compensation and the 3rd Appellant, the equivalent of 8 months’ gross salary.
19. The delivery of this judgment has been brought forward with notice to the parties.
Conclusion and Orders
20. Flowing from the above, the Court sets aside/vacates the finding/judgment by the Senior Resident Magistrate that the Appellants did not prove unfair termination of employment and substitutes therefore a finding that the termination of the Appellants' contracts was unfair.
21. The Appellants are awarded compensation as follows:
(i) 1st Appellant Kshs 77,220/-
(ii) 2nd Appellant Kshs 77,220/-
(iii) 3rd Appellant Kshs 200,000/-
22. The Appellants to have interest on the awards from the date of judgment together with costs of the Appeal and those before the Subordinate Court.
2. In a judgment delivered on 26 February 2024, the Senior Resident Magistrate found that the Appellants had not proved unfair termination of employment on account of redundancy.
3. However, the Senior Resident Magistrate awarded the Appellants terminal dues (salary in lieu of notice, accrued leave and severance pay).
4. The Appellants were dissatisfied with the finding on unfair termination of employment, and they lodged a Memorandum of Appeal with the Court on 11 March 2024, contending:
(i) The Learned Trial Magistrate erred in law and fact in failing to hold that there was no fair and/or valid reason to terminate the Appellants' employment.
(ii) The Learned Trial Magistrate erred in law and fact by considering documents not produced as evidence but only introduced at the submission stage thus treating submissions as evidence.
(iii) THAT the Learned Trial Magistrate erred in fact and law in failing to appreciate the provisions of section 40 of the Employment Act which is explicit in terms and mandatory in tone thereby arriving at an erroneous decision based on extraneous facts not forming part of the proceedings.
(iv) THAT the Learned Trial Magistrate erred in fact and law in addressing the main issue of redundancy in a narrow manner that consultation with the employees is not mandatory during the process preceding redundancy while relying on an authority that has already been overturned by the Court of Appeal.
(v) The Learned Trial Magistrate erred in fact and law in holding that the Appellants were reasonably compensated after the termination whereas the redundancy was unfair and unlawful hence not justified in the circumstances.
(vi) The Learned Trial Magistrate erred in fact and law in failing to find that the Respondent did not follow the laid down procedure as stipulated in section 40 of the Employment Act.
(vii) The Learned Trial Magistrate erred in fact and law in making findings which were a total misdirection and legal deviations from the express provisions of the law and known legal principles.
(viii) The Learned Trial Magistrate erred in fact and law in failing to find that the evidence of the Appellants was uncontroverted by the Respondent having failed to call any witnesses to testify thus the pleadings remained unsubstantiated.
5. The Appellants filed a Record of Appeal on 22 May 2024, and pursuant to Court directions on 4 June 2024, they filed their submissions on 7 June 2024.
6. The Respondent purported to file Grounds of Opposition to the Memorandum of Appeal and submissions on 19 June 2024.
7. The Court has considered the Record of Appeal and submissions.
Role of the Court on a First Appeal
8. In Abok James Odera t/a A. J. Odera & Associates v John Patrick Machira T/A Machira & Co. Advocates (2013) eKLR, the Court of Appeal stated as follows regarding the duty of a first appellate Court:
This being a first appeal, we are reminded of our role as a first appellate court namely, to re-evaluate, re-assess, and reanalyse the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way.
9. This Court will keep the interdict in mind.
Unfair termination of employment
10. Section 40 of the Employment Act, 2007 undergirds termination of employment on account of redundancy.
11. Some of the elements an employer should satisfy to meet the legal threshold include an advance written notice of intention of at least 30 days to declare redundancies as well as a written notification to the local Labour Officer.
12. The Appellants testified that they were informed of the termination of their contracts through phone calls on 5 December 2020.
13. The Respondent did not lead any evidence to controvert the testimony by the production of copies of written notices to the Appellants or the local Labour Officer.
14. Further, sections 43 and 45 of the Employment Act places an obligation on the employer to demonstrate that a redundancy situation was necessary. The Respondent did not call any witness to testify as to the operational reasons or economic hardship it faced due to the COVID-19 public health pandemic to justify terminating the Appellants’ contracts.
15. The Court has no hesitation in finding that the Senior Resident Magistrate fell into errors of both fact and law in rejecting the Appellants' case on unfair termination of employment.
Compensation
16. The 1st and 2nd Appellants served the Respondent for 5 years while the 3rd Appellant served for 10 years. The 1st Appellant was earning a gross salary of Kshs 19,305/-, the 2nd Appellant Kshs 19,305/-, and the 3rd Appellant Kshs 25,000/-.
17. Section 49(4) of the Employment Act, 2007 outlines the factors a Court should consider in awarding compensation.
18. Considering the Appellants' length of service, the Court is of the view that the 1st and 2nd Appellants deserve the equivalent of 4 months’ gross salary as compensation and the 3rd Appellant, the equivalent of 8 months’ gross salary.
19. The delivery of this judgment has been brought forward with notice to the parties.
Conclusion and Orders
20. Flowing from the above, the Court sets aside/vacates the finding/judgment by the Senior Resident Magistrate that the Appellants did not prove unfair termination of employment and substitutes therefore a finding that the termination of the Appellants' contracts was unfair.
21. The Appellants are awarded compensation as follows:
(i) 1st Appellant Kshs 77,220/-
(ii) 2nd Appellant Kshs 77,220/-
(iii) 3rd Appellant Kshs 200,000/-
22. The Appellants to have interest on the awards from the date of judgment together with costs of the Appeal and those before the Subordinate Court.