Standard Group Limited v Rugami & another (Appeal E106 of 2021) [2025] KEELRC 219 (KLR) (29 January 2025) (Judgment)
Neutral citation:
[2025] KEELRC 219 (KLR)
Republic of Kenya
Appeal E106 of 2021
DKN Marete, J
January 29, 2025
Between
The Standard Group Limited
Appellant
and
Irene Wairimu Rugami
1st Respondent
Margaret Wangui Mwangi
2nd Respondent
Judgment
1.This matter was originated by way of a Memorandum of Appeal dated 13th September, 2021. It come out thus;1.The learned trial Magistrate erred in law and fact in failing to dismiss and/or strike out the Respondents’ suit with costs.2.The learned trial magistrate erred in law and fact in failing to analyse the issues that arose at the hearing and raised in the submissions as filed by the Appellant and make a determination on the same.3.The learned trial magistrate erred in law and in fact by holding that the Respondents were unfairly terminated.4.The Learned Magistrate erred in law and in fact in finding that the Respondent had proved their case on a balance of probability contrary to the evidence on record.5.That on a without prejudice basis, the learned trial magistrate erred in law and fact by awarding damages for unfair termination which are excessive in the circumstance and in view of the fact that the Appellant had made payments due to the Respondents as at the time of their termination of employment.
2.The Appellant also latter issues and files a Supplementary Record of Appeal dated 6th February, 2024 in which she buttresses her case for the appeal.
3.This is matter is consolidated with Appeal No. E025 of 2022. This is suo moto and based on the commonality of the issues raised in the two appeals and also that the parties had submitted that these two be handled together.
4.The Appellant in her written submission dated 19th March 2024 posits a case of lawful termination of the employment of the Respondents and therefore this appeal. On this she relies on the authority of Sammy C Akifuma v Shell Development (K) Ltd which referenced the definition of redundancy as outlined in the Halsbury Laws of England, 4th ed..,16(1992) at paragraph 412 where the court held thus;
5.It is the Appellant’s case that the redundancies were declared and relevant notices issued to the Respondents in accordance with the law.
6.The Appellant however fails to demonstrate and satisfy the provisions of Section 40 of the Employment Act, 2007 which provides for the streamlined legal procedure in cases of redundancy. The learned trial magistrate observed this candid deficiency in procedure and therefore her findings of unfair termination of the employment of the Respondents.
7.Again, and notably, the learned magistrate further observed that the Respondent handed over their duties to new employees, a situation that is frowned upon and contradicts the essence and principles of redundancy.
8.The Respondent submits a case of unfairness in the process of termination of her employment. This is as follows;
9.We can only add that in interpreting statutes, the courts have the function of filling in the textual detail by implication, which arises either because it is directly suggested by the words expressed, or because they are indirectly suggested by rules or principles of law which are not excluded by the express wording of a statute. See in this regard the text by F. Bennion: Bennion on Statutory Interpretation, 5th Edition, at sections 172 to 174. Having regard to the legislative intention of the provisions of section 40 of the Employment Act, the international law and decided cases, it is our finnding that consultations on an intended redundancy between the employer and the relevant unions, labour officials and employees is implied by section 40(1)(a) and (b) of the Employment Act.
10.Furthermore, consultation is also now specifically required by article47 of the Constitution and the Fair Administrative Action Act. Article 47 and section 4(3) of the Fair Administrative Action Act provide that where an administrative action is likely to adversely a ect the rights or fundamental freedoms of any person, the administrator shall give the person a ected by the decision-a.prior and adequate notice of the nature and reasons for the proposed administrative action;b.an opportunity to be heard and to make representations in that regard;(c)notice of a right to a review or internal appeal against an administrative decision, where applicable;d.a statement of reasons pursuant to section 6;e.notice of the right to legal representation, where applicable;f.notice of the right to cross-examine or where applicable; org.information, materials and evidence to be relied upon in making the decision or taking the administrative action.
11.An administrative action is defined under the Act to include any act, omission or decision of any person, body or authority that affects the legal rights or interests of any person to whom such action relates. Employers fall within the category of persons whose action, omission or decision affects the legal rights or interests of employees, and more so the redundancy by the Appellant in the present appeal is not contested. The Appellant was therefore also bound by the provisions on consultation required by Article 47 and section 4(3) of the Fair Administrative Action Act
12.The nature and content of the consultations required to be undertaken in a redundancy process was explained by Maraga JA in Kenya Airways limited and Aviation & Allied Workers Union Kenya & 3 others (supra):
13.A perusal of the record of appeal shows that there was no evidence on record or presented to the trial court of any consultations undertaken in the manner stated hereinabove. We therefore find no fault in the finding that the termination of the respondents was unfair for want of the consultations envisaged by section 40 of the Employment Act. This is as follows;
14.They were given letters on the same day they were asked to hand over and vacate their positions, Further the Respondents were asked to hand over to their replacements who had been hired a few days earlier. In that regard we submit that the lower Court was right in deeming the same as unfair termination.
15.It is the Respondent’s conclusive submission is that redundancy is a legitimate ground for terminating a contract of employment provided that there is valid reason based on operational requirements of the employer and the termination is in accordance with fair procedure. As is intended by Section 43(2) of the Employment Act, 2007, the test of what is a fair reason is subjective.Further,
16.In the circumstances of the absence of observation of the requirement of the redundancy per section 40 of the Employment Act, 2007, I find that the learned magistrate was prudent in finding for the Respondent. A case of unfair termination of the employment of the Respondent was explicit and obvious.
17.I am therefore inclined to dismiss the appeal and allow the Cross Appeal on the following terms;(i)The Appellant be and is hereby ordered to meet and pay the Respondent’s salary for January, 2018 as follows;(a)1st Appellant …………….Kshs.53,396.63(b)2nd Appellant …………….Kshs.53,375.00(ii)Accrued leave for 30 days for the year 2017……….Kshs66,745.80Total of award...........Kshs.120,041.63
DELIVERED, DATED AND SIGNED THIS 29TH DAY OF JANUARY 2025.D. K. NJAGI MARETEJUDGEAppearances:1. Mr. Okring instructed by TripleOK Law Advocates for the Appellant.2. Mr. Githinji instructed by A. K. Githinji & Company Advocates for the Respondent.