https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2097

Atonya v China State Construction Engineering Corporation Kenya (Cause E010 of 2025) [2026] KEELRC 2097 (KLR) (21 May 2026) (Judgment) Neutral citation: [2026] KEELRC 2097 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Kitale Cause E010 of 2025 MA Onyango, J May 21, 2026 Between Adamba Kenneth Atonya Claimant and China State Construction Engineering Corporation Kenya Respondent Judgment 1.The Claimant is a male adult residing in Vihiga County. He instituted the instant claim against the Respondent, a multinational corporation engaged in road construction and engineering in the Republic of Kenya and carrying on business in Trans Nzoia County. 2.Vide his Statement of Claim dated 19th August, 2025, the Claimant avers that he was engaged by the Respondent as a Structural Engineer with effect from 15th May, 2023 on a two-year contract which was due to lapse on 15th May, 2025. It is the Claimant’s averment that on 25th September, 2023 the Respondent issued to him a notice of termination of employment on account of redundancy, pursuant to which his contract was terminated on 25th October, 2023. 3.The Claimant avers that he was on duty on 26th to 29th September, 2023 and also on 11th to 13th October, 2023 yet the Respondent’s letter dated 29th September, 2023 was not served upon him until 13th October, 2023, contrary to the terms and conditions of Employment and Labour Laws. 4.The Claimant avers that the termination was illegal, irregular and unlawful for reason that the notice was backdated and he was not given an opportunity to express himself. He listed the particulars of illegality, irregularity and unlawfulness as follows:a.Failing to give the Claimant adequate notice prior to termination.b.Terminating the Claimant's employment prematurely.c.Failing to notify the Claimant of its intention to declare his position had become redundant so as to enable him seek alternative employment.d.Terminating the Claimant's services in disguise of a declaration of redundancy.e.Convincing the Claimant to retire from his previous position and acting on the said representation on the assurance that his current job was secure.f.Deliberately backdating the redundancy notice so as to hoodwink the Claimant into believing that the communication was genuine. 5.The Claimant disclosed that he filed Kitale CMCCC Number E006 of 2024 which was dismissed for want of jurisdiction before he filed the instant suit. 6.The Claimant prays for the following remedies:a.A declaration that the Redundancy Notice and the subsequent termination of the Claimant's contract of employment was arbitrary, illegal and unlawful and the Claimant is entitled to damages.b.Payment of salary for Eighteen (18) months being the remainder of the contract period @ the rate of Kshs.250,000/=per month totalling to Kshs.4,500,000/=.c.Costs and interests from the date the said payment fell due.d.Any other relief the Court shall deem fit to grant. 7.At the hearing the Claimant who testified as CW1 reiterated the averments of his Statement of Claim which are similar to the averments in his witness statement dated 19th August, 2025. He adopted the witness statement and documents filed with the Statement of Claim as part of his evidence. 8.Upon cross examination the Claimant stated that he resigned from his previous employment to join the Respondent after being persuaded to do so by a Mr. Deng, the Respondent’s engineer. He further stated that his contract provided for 3 months’ probation which he completed but was not given a letter of confirmation. 9.The Claimant further testified that he was employed to design a footbridge for KENHA but also designed other projects for the Respondent. That he was engaged in doing roadworks and quantification but could not produce the particulars as the works were the property of the Respondent 10.The Petitioner testified that he was paid Kshs. 410,582 as final dues upon termination. 11.He testified that in his opinion his contract was terminated because he was unwell on 18th and 19th July, 2023 and again on 19th September, 2023 when he was given bed rest for one week up to 26th September, 2023. That he was thereafter admitted in hospital and discharged on 4th October, 2023. 12.The Claimant told the court that what he was claiming was what he would have earned to the expiry of his contract. Respondent’s Case 13.The Respondent filed a Response to Claim dated 24th October, 2025 in which it denied all the averments of the Claimant in the statement of Claim. The Respondent averred that the redundancy notice was served upon the Labour Officer, that the Claimant was duly paid and that the lower court made a finding that the Claimant was paid and no appeal was filed against the determination of the lower court. 14.At the hearing the Respondent closed its case without adducing any evidence other than the pleadings filed after its application for leave to file witness statement and call its witness on 27th January, 2026 after the Claimant testified and closed his case was declined by the Court on grounds that it would prejudice the Claimant who had already testified and closed his case and that the rules provide for witness statements to be filed with the defence. Determination 15.Both parties filed and exchanged submissions which I have considered. The Claimant identified the issues for determination to be:i.Whether the termination of the Claimant's employment on account of redundancy was lawful and procedurally fair.ii.Whether the alleged redundancy was genuine or a disguise for unlawful and premature termination of the Claimant's fixed-term contract.iii.Whether the Claimant's rights to fair labour practices and fair administrative action were violated.iv.Whether the Claimant is entitled to the declarations, compensation, costs, interest, and other reliefs sought in the Claim. 16.The Respondent on its part identified the issues for determination to be:i.The legal position on termination on account of redundancyii.Whether the claimant has proved his claimiii.What remedies are available on the basis of evidence 17.Having considered the pleadings, the evidence on record and the submissions of the parties, the issues arising for determination are the following:a.Whether the redundancy of the Claimant was lawful in terms of valid reason and fair procedure;b.Whether the Claimant is entitled to the remedies sought. 18.The Claimant submitted that the Respondent failed to comply with the mandatory provisions of section 40 of the Employment Act which are intended to protect employees from arbitrary loss of employment. The Claimant submitted that there was failure on the part of the Respondent to comply with both substantive and procedural requirements of the law. 19.Relying on the decision in Bernard Misawo Obora v Coca Cola Juices Kenya Limited [2015] KEELRC 846 (KLR) the Claimant submitted that notification of the Labour Officer is mandatory as a critical regulatory and protective mechanism as the Labour Officer supervises the redundancy to guard against abuse of the process. 20.The Claimant further submitted that backdating the redundancy notice constitutes clear and compelling evidence of bad faith on the part of the Respondent as a lawful notice operates prospectively to accord an employee genuine and meaningful time to prepare for the impending termination and to safeguard the procedural fairness contemplated under the law. Relying on the decision in Nation Media Group Limited v Munene [2025] KECA 114 (KLR), the Claimant submitted that the Respondent’s conduct fundamentally undermined the procedural integrity and revealed the predetermined intention to dismiss the Claimant irrespective of legal compliance. 21.The Claimant further submitted that his fixed term contract created a legitimate expectation of continued employment for the duration of the contract unless lawfully terminated. He submitted that no financial records, restructuring plans or operational reports were adduced by the Respondent to justify the redundancy. That the abrupt termination after barely 4 months into the contract amounted to breach of contractual expectation and absence of substantive justification. 22.The Claimant further submitted that the Respondent having failed to enter appearance or participate in the proceedings, the averments and evidence of the Claimant remained unchallenged, relying on the decision in Motex Knitwear Limited v Gopitex Knotwear Mills Limited (Milimani HCCC No. 834 of 2002) in which the court cited with approval the decision in Autar Singh Bahra & another v Raju Govindji (HCCC No. 548 of 1998) where the court held that where a defendant files defence but does not tender evidence the plaintiff’s evidence remains uncontroverted and the court is entitled to rely on it as truthful. 23.The Claimant submitted that the redundancy was not genuine and was intended to unfairly terminate his fixed term contract as the Respondent failed to demonstrate through objective evidence that the Claimant’s position had become superfluous and his termination was genuinely attributable to a redundancy situation. For emphasis the Claimant relied on the decision of the Court of Appeal in Cargill Kenya Limited v Mwaka & 3 others [2021] KECA115 (KLR) and Nakuru ELRC Petition No. 29 of 2016 - Maxwell Miyawa & 7 others v Judicial Service Commission on unilateral variation of employment contract constituting a fundamental breach tantamount to repudiation of the contract and Agnes Ongadi v Kenya Electricity Transmission Company Limited [2016] KEELRC 14 (KLR) where the court held that a redundancy, restructuring or reorganization that was commenced with the specific purpose of laying off employees was a sham redundancy. 24.The Claimant further submitted that the Respondent failed to prove an objective and transparent selection criteria as was held by the Court of Appeal in Kenya Airways Limited v Aviation & Allied Workers Union Kenya & 3 others (Civil Appeal No. 46 of 2013) [2014] eKLR and in William’s v Compare Maxam Ltd citing Greig v Sir Alfred McAlpine & Son (Northern) Ltd [1979] IRLR 372. 25.For the Respondent it was submitted that an employer has the right to carry out redundancies relying on the decision in Thomas De La Rue (K) Ltd v Omutelema [2013] KECA 492 (KLR), Tobias Ong’any Auma & others v Kenya Airways Co-Operation [2001] KECA 4 (KLR) and Ronald Kipngeno Bii v Unilever Tea Limited [2022] KEELRC 829 (KLR). 26.The Respondent further submitted that the Claimant failed to prove his allegations against the Respondent. That the Claimant produced notice of termination on account of redundancy and further failed to prove that he was admitted in hospital thus contradicting himself. 27.The Claimant’s notice of termination on account of redundancy states as follows:25th September 2023Name: Adamba Kenneth AdambaId No. 20xxxxx55Dear SirRe: Notice Of Termination On Account Of RedundancyWe have been compelled by circumstances beyond our control to rationalize staffing in our operations. This has been caused by work availability whereby we are not able to sustain the current number of employees.Consequently, your service with CSCEC will therefore be terminated on account of redundancy with effect from 25th Oct 2023.This letter clearing and handover of all company property in your possession, your final you will be paid final dues as follows:-Upon clearing and handover of all company property in your possession, your final you will be paid your final dues as follows:- 1.Days worked up to the last day at work calculated at the current rate of pay, 2.Prorated leave days @ 2.25 days for every complete month in service if any, 3.Overtime due for the days worked. 4.Service gratuity @ 16 days for every complete year in Service depending on the employment anniversary. Kindly note that terminal dues will be paid less any outstanding liabilities with the Company.Your certificate of service is attached to this letter.We take this opportunity to sincerely thank you for your services to date and wish you the very best in your future endeavours.Yours faithfully,For and on behalf of CSCECSignedGeoffrey Obamu – HR ManagerCC: County Labour OfficeThis letter is sent to you in duplicate for you to sign and return a copy as a sign of acknowledgment of receipt.I ……………………… do hereby acknowledge receipt of this letter and accept the contents of the letter.Sign ……………………………….. date……………………….. 28.The letter is dated 25th September, 2023. It was the Claimant’s evidence that the letter was issued to him on 13th October, 2023. That he was therefore not given notice as provided in section 40 of the Employment Act. This evidence was not controverted by the Respondent. 29.Section 40(1) 0f the Act provides for redundancy as follows:40.Termination on account of redundancy(1)An employer shall not terminate a contract of service on account of redundancy unless the employer complies with the following conditions—(a)where the employee is a member of a trade union, the employer notifies the union to which the employee is a member and the labour officer in charge of the area where the employee is employed of the reasons for, and the extent of, the intended redundancy not less than a month prior to the date of the intended date of termination on account of redundancy;(b)where an employee is not a member of a trade union, the employer notifies the employee personally in writing and the labour officer;(c)the employer has, in the selection of employees to be declared redundant had due regard to seniority in time and to the skill, ability and reliability of each employee of the particular class of employees affected by the redundancy;(d)where there is in existence a collective agreement between an employer and a trade union setting out terminal benefits payable upon redundancy, the employer has not placed the employee at a disadvantage for being or not being a member of the trade union;(e)the employer has where leave is due to an employee who is declared redundant, paid off the leave in cash;(f)the employer has paid an employee declared redundant not less than one month’s notice or one month’s wages in lieu of notice; and(g)the employer has paid to an employee declared redundant severance pay at the rate of not less than fifteen days pay for each completed year of service. 30.In the instant case the Respondent did not deny that the Claimant was issued with the redundancy notice dated 25th September, 2023 on 13th October, 2023, giving him less than 30 days’ notice of the redundancy contrary to the provisions of section 40(1) of the Act which provides for 2 notices: a notification of the impending redundancy of at least 30 days prior to the termination on account of redundancy, and a termination notice or payment in lieu of notice of the redundancy. The Court of Appeal clarified the two separate notices provided for in sections 40(1)(a) as read with 40(1)(b) and the notice at section 40(1)(f) of the Act in the case of Thomas De La Rue (K) Ltd v Omutelema. (Supra). 31.The Claimant having not been issued with notice as anticipated in section 40(1) of the Act, the redundancy amounted to an unfair termination in terms of section 45(2) as read with section 44(1) and (2) which provide:(1)Summary dismissal shall take place when an employer terminates the employment of an employee without notice or with less notice than that to which the employee is entitled by any statutory provision or contractual term.(2)Subject to the provisions of this section, no employer has the right to terminate a contract of service without notice or with less notice than that to which the employee is entitled by any statutory provision or contractual term. Remedies 32.The Claimant sought several remedies among them a declaration that his redundancy notice and the subsequent termination of his contract was arbitrary, illegal and unlawful and that he is entitled to damages; payment of salary of 18 months of his unexpired contract, costs and any other remedy the court deems fit to grant. 33.For the reasons I have given herein, I declare the redundancy of the Claimant unfair and unlawful. 34.I further award the Claimant both the notice (notification of not less than one month) under section 40(1)(a) as read with (b) and section 40(1)(f) (termination notice) at Kshs. 250,000 each. I accordingly award the Claimant Kshs. 500,000 under this head. 35.It was further the Claimant’s case that the redundancy was not genuine as he was targeted for termination on grounds of his ill health and the redundancy was therefore a sham. I would agree with the Claimant in the absence of a reasonable explanation for the termination of the Claimant’s employment just a few months after the contract was entered into, and at a time when he was absent for several days due to ill health as is evident from the medical records produced by the Claimant. For the sham redundancy I award the Claimant a further sum of one months’ salary in the sum of Kshs. 250,000 as compensation. 36.The prayer for the unexpired term of the contract is declined as it is not supported by the law. Section 49 of the Employment Act does not recognize payment for unserved term of an employment contract and instead recognizes only compensation for the same which may not exceed 12 month’s salary. It is my view that the awards already given to the Claimant are reasonable compensation for the unfair termination of the Claimant’s employment. 37.The Respondent shall pay the Claimant’s costs of this suit. 38.Interest shall accrue at court rates from date of judgment. DATED, DELIVERED AND SIGNED ON THIS 21ST DAY OF MAY, 2026.M. ONYANGOJUDGE