https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1422

 **REPUBLIC OF KENYA** **IN THE EMPLOYMENT *&* LABOUR RELATIONS** **COURT OF KENYA AT KISUMU** **CAUSE NO. E069 OF 2025** MICHEAL OMONDI MBOGO...............................…………....**CLAIMANT** **VERSUS** MEDS MAISHA KENYA LIMITED......................................**RESPONDENT** **JUDGMENT** 1. The Claimant filed this suit through a Memorandum of Claim dated 23rd July 2025, identifying the issues in dispute as unfair termination contrary to section 40 of the Employment Act and perpetuation of unfair labour practices contrary to Article 41(1) of the Constitution. He sought the following reliefs: * + 1. A declaration that the dismissal or termination of his employment on account of redundancy was unlawful and unfair; 2. An order directing the Respondent to pay him compensation equivalent to twelve months’ salary for unlawful and unfair termination, amounting to USD 8,664. 3. Interest on item (2) above at court rates from the date of filing suit until payment in full; 4. Cost of this suit and interest till payment in full; and 5. Such other, incidental and/or alternative reliefs or remedies this Honourable court may deem just and expedient to grant in the circumstances. 2. The Claimant’s case is that he was employed by the Respondent on 21st May 2021 as a Senior Associate, Customer Experience, earning a monthly salary of USD 722. He states that on the evening of 20th March 2025 at about 8.00pm, he received an invitation to attend a virtual meeting scheduled for the following morning, 21st March 2025 at 10.00am. During that meeting, the Claimant states that the Respondent made it clear that it intended to undertake a redundancy exercise on account of the loss of USAID funding. According to the Claimant, shortly after the meeting he was summoned to the Human Resource Department where he was informed that he was among the employees earmarked for redundancy. He avers that the Respondent immediately locked him out of his official email account, instructed him to surrender his work laptop, and directed him to proceed on leave pending further deliberations regarding his position. After being sent on leave, the Claimant contends that no consultations were ever undertaken as intended. Specifically, he states that his proposal that employees take salary reductions as an alternative measure to avert job losses was neither considered nor discussed by the Respondent. It is his case that the loss of USAID funding did not constitute a valid reason for redundancy, specifically because all USAID funded projects had been concluded by November 2024 with none being anticipated for the year 2025. In any event the Claimant avers that there was still funding from Children Investment Fund Foundation, Pfizer, Livelihood Impact Fund, Fred Hutch and the Gates Foundation. 3. In view of the forgoing, the Claimant contends that the redundancy was both procedurally and substantively unfair, having been carried out without meaningful consultation and through an opaque selection process that failed to take into account the statutory considerations of seniority, skill, ability, and reliability. 4. In response, the Respondent filed a Response to the Memorandum of Claim dated 18th August 2025. The Respondent avers that the Claimant was initially engaged as an Associate, Kenya Operations, on 1st January 2022 at a monthly gross salary of Kshs. 42,500/-, and was only subsequently promoted in January 2025 to the position of Senior Associate, Customer Experience at a monthly salary of USD 722. It is the Respondent’s case that during a meeting convened on 5th March 2025 by the Chief Operations Officer and the Country Director, it was resolved that staff downsizing was necessary owing to funding cuts by USAID. Pursuant thereto, the Respondent states that employees were informed of the prevailing financial challenges, said to have arisen from circumstances beyond its control, during a subsequent meeting held on 21st March 2025. The Respondent further avers that the loss of USAID funding resulted in the discontinuation of projects, necessitated budget cuts, and compelled the organization to undertake urgent restructuring measures, including redundancies, in order to safeguard the sustainability of its operations and the continued delivery of essential health programmes. It is further averred that after the meeting of 21st March 2025, the Claimant was invited for an individual meeting and informed that his position had been declared redundant. According to the Respondent, the reasons for the intended redundancy were thereafter communicated to the Labour Office in Kisumu County. The Claimant was subsequently placed on garden leave as an interim administrative measure intended to facilitate consultations while safeguarding the Respondent’s operations and data security. The Respondent maintains that a thirty-day consultation process commenced on 21st March 2025, at the conclusion of which redundancy was found to be the only viable option. Consequently, the Respondent contends that the redundancy was both substantively justified and procedurally fair and urges the Court to dismiss the suit with costs. 5. At the hearing, the Claimant testified on his own behalf while the Respondent called its Director of People Operations. The Claimant adopted his witness statement dated 23rd July 2025 as his evidence in chief and produced his bundle of documents of even date as exhibits 1–7. Upon cross-examination, he acknowledged that the loss of a major donor would inevitably affect the Respondent’s operations. He nevertheless maintained that there was no meaningful consultation, stating that his proposals, including salary reductions as an alternative to redundancy, together with the criteria for redundancy, were disregarded. 6. On the Respondent’s part, Mr. John Nsubuga likewise adopted his witness statement dated 18th August 2025 as his evidence in chief and produced the documents contained in the Respondent’s list of documents of the same date. Upon cross-examination, he acknowledged that although the Claimant’s laptop was taken away, other avenues of communication remained available to him. 7. Upon close of the hearing, both parties filed written submissions. Claimant’s Submissions 1. The Claimant submits that the redundancy fell short of the requirements of section 40 of the Employment Act as there was neither substantive justification nor meaningful consultation, and the selection criteria employed was opaque. On the issue of consultation, the Claimant submits that the process was merely cosmetic and intended only to rubberstamp a decision that had already been made to terminate his employment. In this regard, he points to RW1’s testimony in cross-examination that immediately after notification, he was locked out of his official email account and directed to surrender company property. He further relies on RW1’s testimony that he was sent on leave in order to safeguard the Respondent’s operations and data, contending that this demonstrated that the Respondent never intended to retain him beyond the notice period ending on 20th April 2025. In support of this position, the Claimant relies on **Mwikali *v* Flame Tree Africa Limited (Cause E6- 7 of 2021) [2025] KEELRC 1809 (KLR)**, where the court stated: *“The law is clear on what an employer intending to declare an employee redundant needs to do. The notice intended is one month. It is however apparent that there was no real notice in case of the claimant as she was given the notice the same day and asked to hand over all company properties. The respondent indicated that she was to continue to discharge all her duties during the notice period. Their contents however betray them and show that they did not intend to keep her beyond 18/3/21.’’* 1. He also cites the case of **Kenya Airways *v* Aviation *&* Allied Workers Union Kenya *&* 3 others [2014] eKLR**,where the Court underscored that consultations in a redundancy process must be genuine, with the affected party being furnished with precise information, afforded a reasonable opportunity to respond, and the consulting party remaining open-minded and receptive to alternative proposals. The Claimant asserts that the Respondent neither made proposals nor considered his proposals during the negotiations process as is required. He cites **Kenya Airways *v* Aviation *&* Allied Workers Union** (*supra*) in which it was stated: *“The 1st respondent’s views on whether redundancy would have been avoided by say a freeze on salary increments and how the employees’ hardships arising from redundancies could be minimized were never considered. In the circumstances, even without the said injunction that the 1st respondent obtained which halted all activities in pursuance of the proposed redundancy, I do not think that any meaning consultations would have taken place. I therefore agree with the learned Judge and find that the appellant flouted the requirements of notice and consultation.”* 1. The Claimant submits that the consultations undertaken by the Respondent fell short of the standards set out under **Article 13 of Convention No. 158 and Recommendation No. 166 of the International Labour Organization (ILO)**, which require consultations to commence as early as possible, focus on measures aimed at minimizing terminations, and explore means of mitigating the adverse effects of redundancies, including the possibility of securing suitable alternative employment. 2. With regard to the selection criteria, the Claimant submits that the Respondent failed to take into account seniority in time, skill, ability, reliability, and the “last in, first out” principle contemplated under section 40(1)(c) of the Employment Act. In support of this contention, he refers to RW1’s testimony and, in particular, the admission that senior employees were selected on account of their comparatively high salaries. Reliance is placed on **Kimathi *v* Ericsson Kenya Limited (Civil Appeal 601 of 2019) [2023] KECA 106 (KLR)**, where the Court of Appeal emphasized the need for fair and objective selection criteria devoid of emotions or personal prejudice. The Claimant further submits that although the “last in, first out” principle is not the sole determinant in redundancy, an employer is nonetheless required to consider seniority, skill, ability, and reliability, as emphasized in **Kenya Airways *v* Aviation *&* Allied Workers Union Kenya** *(supra)*. Further reliance is placed on **London Distillers (K) Limited *v* Kenya Union of Commercial Food *&* Allied Workers [2025] KECA 216 (KLR)**, where the Court of Appeal held that an employer must demonstrate the procedure used in identifying employees affected by redundancy and show due regard to the statutory criteria under section 40(1)(c) of the Employment Act. 3. On substantive justification, the Claimant submits that the Respondent failed to produce concrete evidence demonstrating withdrawal of donor funding. He points to RW1’s testimony, in which the witness failed to identify any donor communication or produce evidence showing receipt and utilization of such donor funds. The Claimant further submits that evidence adduced in relation to another employee showed that persons outside the alleged Expansion Team were also declared redundant following the purported phasing out of the supply chain department, thereby casting doubt on the Respondent’s explanation. He additionally asserts that no staff rationalization programme or restructuring framework was produced to demonstrate how his role became redundant. In the circumstances, the Claimant urges the Court to allow the claim as prayed. Respondent’s Submissions 1. From the outset, the Respondent submits that the redundancy met both the substantive and procedural requirements prescribed under section 40 of the Employment Act. In support of this position, reliance is placed on **Kenya Airways Ltd *v* Aviation *&* Allied Workers Union Kenya *&* 3 others [2014] KECA 404 (KLR)**, where the Court held that termination on account of redundancy is lawful where there exists substantive justification coupled with procedural fairness. 2. On substantive justification, the Respondent submits that the abrupt withdrawal of USAID funding, together with the loss of anticipated malaria and HIV contracts, precipitated a financial crisis beyond its control, thereby necessitating restructuring and reduction of operational costs. It contends that the Claimant’s role became untenable because USAID was the principal donor funding the Kenya Expansion Team, within which the Claimant served. The Respondent further submits that internal deliberations, including the management meeting held on 5th March 2025 and the meeting held on 21st March 2025, confirmed the need for restructuring. It maintains that the decision to declare the Claimant redundant was reached only after alternatives, including furlough arrangements and retention of senior staff, had been explored. 3. On procedural fairness, the Respondent submits that it complied with the notification requirements under section 40(1)(a) and (b) of the Employment Act. It emphasizes that all employees were informed on 21st March 2025 of the organization’s financial position and the likelihood of restructuring and redundancies. The Respondent further states that it thereafter held a one-on-one meeting with the Claimant on the same day during which the specific risk to his position was explained. In addition, it avers that the Labour Office in Kisumu County was notified on 19th and 27th March 2025 regarding the intended redundancy exercise. With respect to consultation, the Respondent contends that a structured thirty-day consultation process was undertaken between 21st March 2025 and April 2025, during which employees were invited to raise concerns and their views were considered before the final decision was made. It further maintains that alternatives to redundancy were explored but found unviable in light of the absence of foreseeable funding. 4. Regarding the selection criteria, the Respondent relies on the case of **Mengesa *&* another *v* Standard Chartered Bank Kenya Limited [2024] KEELRC 1681 (KLR)** for the proposition that the “last in, first out” principle is not mandatory provided that the criteria applied is documented and objective. The Respondent submits that it applied an objective, transparent, and non-discriminatory criterion based on seniority within the senior associate and managerial cadre, as well as role overlap. It asserts that the criterion was directly linked to the need to achieve a 66% cost reduction within the Kenya Expansion Team following withdrawal of donor funding. The Respondent further submits that the ranking outcomes were discussed and documented in management meeting minutes and were consistently applied to all affected employees within the Kenya Expansion Team. Consequently, it contends that the process fully complied with section 40 of the Employment Act and Article 47 of the Constitution. 5. On the issue of terminal dues, the Respondent submits that it paid all statutory entitlements due to the Claimant, including one month’s salary in lieu of notice, severance pay, accrued leave pay, and salary up to April 2025. Further, it avers that it extended the Claimant’s medical cover up to July 2025 and paid a full month’s salary for April 2025, including days not worked, as a goodwill gesture intended to cushion him from the effects of the redundancy. In light of the foregoing, the Respondent submits that the Claimant has failed to discharge the burden of proving unfair termination under section 47(5) of the Employment Act and accordingly urges the Court to dismiss the suit with costs. Disposition 1. The It is so ordered. **Dated and delivered at Kisumu this 26th day of May 2026** **Nzioki wa Makau, MCIArb.** **JUDGE**