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JudgmentRevel Okoth VS Geomaps Africa Ltd12 min read

Revel Okoth VS Geomaps Africa Ltd

Employment and Labour Relations Court at Nairobi Employment and Labour Relations Court (ELRC) · · J. N. Abuodha

Summary

The Appellant appealed against the Learned Magistrate's judgment dismissing their claim, arguing that the court erred in law by holding the Appellant was terminated per employment contract instead of redundancy, misdirected evidence, and failed to consider binding legal precedents. The court found the termination was lawful under the employment contract despite the Appellant's claim of redundancy, noting the contract was not signed by her and had expired, and the Respondent did not follow statutory redundancy procedures. The court held the Appellant was terminated as per the contract, not redundancy, and dismissed the appeal.


  1. Through the Memorandum of Appeal dated 8th July, 2022, the Appellant appeals against the whole of the Judgment of Honourable Kagoni HM (PM) delivered on 14th June, 2022.
  2. The Appeal was based on the grounds that:
    1. The Learned Magistrate erred in law in dismissing the Appellant’s case.
    2. The Learned Magistrate misdirected himself in evidence in holding that the Claimant’s services were terminated as per the employment contract instead of redundancy.
    3. The Learned Magistrate erred in law in ruling in favour of the Respondent despite overwhelming points of law and facts tilting heavily against the Respondent.
    4. The Learned Magistrate erred in law and in fact as the judgment was against the weight of evidence adduced by the Claimant which facts were justifiable, substantive and overwhelming as provided for in the law.
    5. The Learned Magistrate erred in law and in fact by failing to hold that the Appellant was unlawfully declared redundant and was entitled to compensation.
    6. The Learned Magistrate erred in law and in fact by shifting the burden of proof from the Respondent to the Appellant.
    7. The Learned Magistrate erred in law and in fact as the judgment was against the weight of evidence adduced by the Appellant.
    8. The Learned Magistrate erred in law and fact by failing to test all the facts and evidence pleaded and adduced on a balance of probabilities.
    9. The Learned Magistrate erred in law in failing to take in to consideration the submissions and High Court and Court of Appeal decisions cited by the Appellant as well as the Respondent’s which authorities are binding on the lower court.
  3. The Appellant prayed that the Appeal be allowed with costs and the Judgment of the lower court delivered on 14th June,2022 be set aside and the Appellant be compensated for unlawful redundancy, paid leave days and house allowance.
  4. The Appeal was disposed of by written submissions.

APPELLANT’S SUBMISSIONS

  1. The Appellant’s advocates Emmanuel Wanyonyi & Company Advocates filed written submissions dated 24th March, 2024 and on the issue of whether the trial court erred in dismissing the Appellant’s claim counsel submitted that the trial court erred in holding that the Appellant’s services were terminated as per employment contract instead of redundancy. That the trial court judgment highlighted that the Appellant was declared redundant yet on the other hand the court held there was no redundancy.
  2. Counsel submitted that although there was no evidence that the layoff letter dated 9th July,2019 was ever received by the Appellant as required by the law the contents of the said letter clearly states that the Respondent company no longer had any running projects and the Appellant’s position was to be affected. That the termination was not about the Appellant’s act of commission or omission. That nothing in the notice was stated implicating that the Appellant was being dismissed due to the fact that he used to report on duty late.
  3. Counsel further submitted that the last paragraph of the letter showed that the Respondent was more than willing to re-engage the Appellant when they get busy in future. That this fitted the description of redundancy under section 2 of the Employment Act. Counsel submitted that Section 40 of the Employment Act sets out the procedure for redundancy. That under section 40(1)(a) and (b) the employer is required to notify the union and labour officer at least one month before redundancy is effected of the intention to declare the employee redundant. That the employer is to notify the labour officer where the employee is not a member of the Union.
  4. Counsel submitted that the Respondent never followed the above requirements. That those principles were to be followed fully and not selectively. That the act gives the employer the right to terminate an employee but the same right is regulated by sections 40,43 and 45 of the Act. That the Appellant was entitled to severance pay of 15 days salary for each complete year of service.
  5. Counsel submitted that the Appellant alleged that he was earning Kshs 40,000/= per month while the Respondent alleged that the Appellant was earning Kshs 23,000/=. The Appellant produced bank statement which showed there was payment of Kshs 32,881 from the Respondent Company which clearly shows that his salary was Kshs 32,881. That this position was not challenged by any documentary evidence from the Respondent. That the Appellant severance pay ought therefore to have been Kshs 32,881 ½ x 8 = Kshs 131,524/=.
  6. Counsel submitted that the Appellant was entitled to compensation for wrongful termination and leave days since the Respondent in cross-examination acknowledged that it did not have evidence to show that the Appellant went on leave. Counsel relied on the case of Abigael Jepkosgei Yator & Another v China Hanan International Co. Ltd (2018) eKLR on the need for employer to keep employment records while submitting that in absence of any document to prove that the Appellant was given any leave days by the Respondent the Appellant was entitled to the payment of the same as per section 28 of the Employment Act at Kshs 32,881/30 x 21 x 8 = 184,133.6/=
  7. Counsel submitted that had the learned Magistrate considered the Appellant’s submissions and facts of the claim he would have arrived at a different holding. That the Appellant’s case should be reconsidered and his prayers be allowed as prayed. Counsel urged the court to consider the cases of Kenya Airways Limited v Aviation & Allied Workers Union Kenya & 3 Others (2014) eKLR and Kenfreight(E.A) Limited v Benson K. Nguti(2016) eKLR.

RESPONDENT’S SUBMISSIONS

  1. The Respondent did not participate in this appeal nor file any submissions despite service.

DETERMINATION

  1. On a first appeal, the role of the Court has been stated in several cases. For instance the Court of Appeal for East Africa in Peters –vs- Sunday Post Limited [1958] EA 424 observed that the appropriate standard of review established in cases of appeal can be stated in three complementary principles:

i. First, on first appeal, the Court is under a duty to reconsider and re-evaluate the evidence on record and draw its own conclusions;

ii. In reconsidering and re-evaluating the evidence, the first appellate court must bear in mind and give due allowance to the fact that the trial court had the advantage of seeing and hearing the witnesses testify before her; and

iii. It is not open to the first appellate court to review the findings of a trial court simply because it would have reached different results if it were hearing the matter for the first time.

  1. In this case, the Judgment of the trial court was that the Claimants’ claim was dismissed for lack of merit with no orders as to costs while disallowing the reliefs sought by the Appellant and the court dismissed the Respondent’s counterclaim. The Appellant appealed the whole of the Judgment on the 9 grounds which the court will condense in to two issues of whether the trial court erred in finding that the Appellant was terminated lawfully as per the employment contract instead of on account of redundancy and whether the trial court erred by not allowing the reliefs sought.

Whether the trial court erred by finding that Appellants’ termination of employment lawful on account of employment contract instead of on account of redundancy

  1. It was not in dispute that the Appellant was an employee of the Respondent from July, 2016 and she was terminated on August 2019 by being paid one-month’s salary in lieu of notice. The Respondent averred that by dint of a clause in the employment contract dated 4th July,2016 they were entitled to terminate the services of the Appellant by giving her one-month notice. That she was terminated as per that employment contract.
  2. The Appellant on the other hand argued she was terminated on account of redundancy as per the termination letter dated 30th August,2019 which she produced and stated that she was employed on six -month contract from July 2016 and she turned in to permanent and pensionable employee by conduct of the Respondent. The Appellant only produced the termination letter and her bank statements.
  3. The Respondent produced the contract dated 4th July,2016 which was not signed by the Appellant, internal memo of 18th April, 2019 of the impending redundancy, letter dated 9th July, 2019 addressed to the Appellant on her being considered for redundancy and received by the labour officer and the internal memo dated 27th August, 2019 referring to the internal memo of April 2019 of the impending redundancies stating that the affected employees have received the notices.
  4. The trial court found that the Appellant was terminated as per the contract of employment that the contract bound the parties even if not signed by parties it was not impugned by the Appellant. The trial court contradicted itself because initially it stated that the Appellant was terminated on account of redundancy also in the counterclaim the court stated that the Appellant was terminated on redundancy yet still held that she was terminated as per contract of employment.
  5. From the termination letter dated 30th August, 2019 produced in the court the reason for termination was clear lack of work since the Respondent had no running projects which was a redundancy and the Respondent expressed that it would re-engage the Appellant in future when it gets busy. The reason was clearly that of redundancy and the trial court misdirected itself on this fact. In any event the contract dated 4th July,2016 was not signed by the Appellant to be binding even if it was not impugned by the Appellant and the same had since expired three years on 4th July, 2019 and had not been renewed.
  6. On the issue of the Respondent issuing one month-notice and one -month salary payment, the court notes that in as much as this could be a contractual obligation it could not override statutory obligation on the employer from proving the reasons for termination. In the case of Kenfreight (E.A.) Limited v Benson K.Nguti [2016] eKLR the Court of Appeal held as follows which decisions was upheld by the Supreme Court:_

The Employment Act, for example, introduced and prescribed minimum terms which the parties must consider as they contract.  It established the concept of fair hearing and placed a duty on an employer to give reasons before dismissing or terminating the services of an employee.  These developments are a stark departure from the traditional power of the employer to terminate or dismiss at will as demonstrated in the earlier decisions of the courts…. So that, although there is freedom to contract, under the present regime, the terms of the contract must be in consonance with the irreducible minimum terms and conditions in the Act.

  1. This therefore means the Respondent could not just terminate the services of the Appellant at will without giving valid reasons for termination. Despite the termination letter being one on account of redundancy the Respondent brought up the issue of late coming of the Appellant which was not proved since no disciplinary process was taken on that account.
  2. Redundancy is defined under section 2 of the Employment Act as;

means the loss of employment, occupation, job or career by involuntary means through no fault of an employee, involving termination of employment at the initiative of the employer, where the services of an employee are superfluous and the practices commonly known as abolition of office, job or occupation and loss of employment.

  1. The court notes that the above reason falls within the definition of redundancy since it was on the initiative of the Respondent and the Appellant clearly stated that she did not breach any of the Respondent’s terms to be terminated and if so no disciplinary action was preferred against her. In addition, the Respondent expressed its intention to re-engage her in future when it gets busy. In Kenya Airways Limited vs. Aviation and Allied   Workers Union of Kenya and 3 Others (2014) eKLR, the Court of Appeal pronounced itself as follows:

“Thus, redundancy is a legitimate ground for terminating a contract of employment provided there is a valid and fair reason based on operational requirements of the employer and the termination is in accordance with a fair procedure.  As Section 43(2) provides, the test of what is fair reason is subjective.  The phrase “based on operational requirements of the employer” must be construed in the context of the statutory definition of redundancy.

What the phrase means, in my view, is that while there be underlying causes leading to a time redundancy situation such as reorganization, the employer must nevertheless show that the termination is attributable to redundancy – that is that the services of the employee has been rendered superfluous or that redundancy has resulted in abolition of office, job or loss of employment.”

  1. The Respondent concentrated on alleging that they adhered to the employment contract in terminating the Appellant’s services and did not prove the reasons of termination. Whereas the employer has a right to declare an employee redundant under section 40 of the Employment Act there is a well laid down procedure to be followed. It may have been the case that the respondent was facing lack of work, there were however obliged to follow the law in declaring the appellant redundant.
  2. This court therefore agrees with the appellant and overturns the trial court’s finding that the Appellant was terminated fairly as per the employment contract and finds that she was terminated unfairly on account of redundancy.

Whether the trial court erred by disallowing the reliefs sought by the Appellant

  1. The court having found that the Appellant was unfairly terminated on account of redundancy without payment of her dues under section 40 of the Act proceeds to find that she was entitled to damages for unfair termination as provided for under section 49 of the Act. The court notes that the Appellant worked for the Respondent from 2016 to 2019 which is approximately three years. The court also considers the nature of the termination which was in the blatant breach of the law and awards the Appellant five months’ salary as compensation for unfair termination.
  2. On the correct salary, the Appellant attached bank statement which had varying amounts and the court can only stick to what the parties alleged of Kshs 30,000/= per month. This was the amount in the memorandum of claim and parties are bound by their pleadings.
  3. On the prayer for house allowance the Appellant at the hearing at trial court admitted that her salary was consolidated hence the same fails. On the prayer for accrued leave, section 28 of the Employment Act gives every employee a right to take annual leave. The employer has the duty to ensure every employee has taken annual leave as and when due. The Respondent who is the custodian of employment records under section 74 of the Act did not rebut this assertion with any document apart from stating that employees would go on leave during Christmas holidays for around 7 days.
  4. In addition, during hearing the Respondent’s witnesses acknowledged that they did not have any evidence that the Appellant went on leave. The trial court held that the Appellant could not be trusted on this issue. However the Court is of the view that the Respondent had a duty to prove the number of days the Appellant went on leave by producing the documents at its hand. Failure to produce any these court returns a verdict that she was entitled to the same for the three years completed by the Appellant at Kshs 30,000 x 3=Kshs 90,000/=
  5. On the prayer for Severance Pay, this is due to her as provided under section 40(g) of the Act in a case for redundancy. This prayer succeeds since the redundancy was unfair as claimed in the claim and no evidence was tendered if the Respondent paid the Appellant the same. The same is allowed at Kshs 15,000 x 3= Kshs 45,000/=
  6. In the upshot the Appeal succeeds with costs to the Appellant as follows: _
      1. 5 months compensation for unfair

termination ……………….………Kshs 150,000/=

      1. Unpaid Leave……………..…..….. Kshs 90,000/=
      2. Severance pay…………………...…Kshs 45,000/=

TOTAL …………………………..……KSHS 255,000/=

      1. Costs of the suit and this Appeal.
  1. It is so ordered.

Dated at Nairobi this ……… day of…………. 2025

Delivered virtually this……… day of ………….2025

Abuodha Nelson Jorum

Presiding Judge-Appeals Division

    Revel Okoth VS Geomaps Africa Ltd Revel Okoth VS Geomaps Africa Ltd