https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1817

REPUBLIC OF KENYA IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT MALINDI ELRC APPEAL NO. E. 010 OF 2025 NORTH COAST MEDICAL TRAINING COLLEGE……………………………………………………APPELLANT VERSUS JUDITH AISHA OMAR ………………………….………RESPONDENT *[ Being an Appeal from the judgment of the Chief Magistrate Hon. James N. Mwaniki in Kilifi Cmcc Elrc No. E006 of 2023 delivered on 2nd April 2025]* **JUDGMENT** **Background** 1. Contending that at all material times she was an employee of the Appellant, whose employment was unfairly terminated, the Respondent sued the Respondent in the above-mentioned matter, seeking the following remedies; 1. A declaration that her dismissal from the Appellant’s service through redundancy was unlawful, unfair, illegal, and unprocedural. 2. Payment of her terminal and compensatory damages amounting to Kshs. 687,921.54/=. 3. Issuance of a certificate of service in compliance with the provisions of section 51 of the Employment Act. Any other relief that the Court may deem fit to grant. 4. Costs and Interests of this suit. 2. The Appellant contested the Respondent’s case through a Response to the Memorandum of Claim dated 19th May 2023. The Respondent contended that the termination of the Respondent was both substantively and procedurally fair. It denied her entitlement to the reliefs she had sought. 3. After hearing the parties on their respective cases, the trial Court allowed the Respondent’s case. Aggrieved by the judgment, the Appellant filed the instant appeal, citing seven [7] grounds of appeal. 4. . When this matter came up for directions on the hearing of the appeal, this Court directed that the appeal be canvassed by written submissions. The parties complied. Their respective submissions are on record for the Court’s consideration. **Respondent’s case in the lower court** 1. The Respondent’s case was that she had been employed by the Respondent, Riley Falcon Security Services Limited, as a Communication Assistant from July 2020 until 31st January 2023, when her employment was unfairly and unlawfully terminated by the Appellant. At the termination of her employment, she was earning a monthly salary of KShs. 37, 673. 2. She asserted that during her employment with the Appellant, she discharged her duties diligently and to the Appellant’s satisfaction until 31st January 2023, when she was abruptly issued with a termination letter. According to the letter, the termination was on the grounds of redundancy, and she was to vacate the Respondent’s premises by 1st February 2023. 3. She contended that the 24-hour notice issued to her was contrary to the provisions of Section 40 of the Employment Act. It was far shorter than the 30 days’ notice envisaged in the section. 4. The Respondent further contended that, before her termination on those grounds, she was not individually consulted or informed of the impending redundancy. 5. The Respondent further asserted that the termination was not justified. Further, it was unlawful, unfair, illegal, and unprocedural. 6. She asserted that in the circumstances of the matter, she was entitled to one month’s salary in lieu of notice, Payment for earned but unutilized leave days, severance pay, welfare scheme savings, and compensation for unlawful, unfair, and illegal termination of her employment. **Appellant’s case in the lower court** 1. The Appellant’s case, supported by the testimony of its witness, Reuben Waswa, the Managing Director, was that the Respondent was at all material times its employee serving as a Communication Assistant. Initially, she was employed under a probationary contract lasting four months. She was subsequently confirmed into employment on 1st July 2021, on permanent and pensionable terms. 2. In or about July 2022, the Appellant noted that the Marketing Department was not effectively marketing and publicising the institution, and as a result, the institution was not attracting clientele as expected. Consequently, the Appellant liaised with the Head of Marketing on the performance improvement plan on 19th July 2022. The areas of concern were clearly outlined, and the expected improvement activities, timelines for improvement, expectations, and consequences of non-improvement were agreed upon. 3. On 15th December 2022, the Appellant held a meeting with the Head of Marketing and other staff to discuss the evaluation of the performance improvement plan and the future of the marketing department. Despite all the efforts made, it became apparent that the Appellant was not benefiting from a marketing department. 4. On 16th January, 2023, by a letter of the same date, the Appellant informed the marketing department, through the Head of Marketing, that, upon appraising the performance improvement plan, the Respondent’s Board of Directors had expressed the intention to restructure or reorganise the marketing department, or, if need be, to do away with it, at which point the Respondent would cease to be an employee. 5. On 30th January, 2023, in accordance with the requirements of the provisions of the Employment Act on redundancy, the Appellant notified the Kilifi County Labour Office of the intention to terminate the Respondent's employment on account of redundancy. 6. On 31st January 2023, the Appellant formally notified the Respondent via a letter dated the same day that her employment had been terminated due to redundancy. Subsequently, the Respondent cleared with the Appellant and received her separation entitlements totaling KShs. 66, 842.65. **Judgment of the lower court** 1. In his judgment referred to above, the learned trial Magistrate found that the Appellant had not proved that the termination of the Appellant’s employment was on account of redundancy. Further, the termination was unfair. On that basis, he awarded the Respondent one month’s salary in lieu of notice, severance pay, compensation for leave days earned but not utilised, a refund of welfare contributions, and compensation for unlawful termination, six months’ gross salary. **Appeal** 1. Aggrieved by the entire Judgment, the Appellant appeals against it on the following grounds. 2. THAT the learned Magistrate erred in failing to consider the Appellant’s evidence on record. 3. THAT the learned magistrate erred in law and fact in failing to consider the Appellant’s submissions on record. 4. THAT the learned magistrate disregarded the evidence adduced at the trial when he declared that the Respondent had been unlawfully terminated from employment for purportedly not being prepared psychologically or emotionally for the exit from the Respondent’s employ on account of redundancy. 5. The Learned Magistrate disregarded the evidence adduced at trial when he failed to take into consideration the provisions of Section 40 of the Employment Act, 2007. 6. THAT the learned magistrate misdirected himself on the applicable law since the ground stated above is not encapsulated in Section 40 of the Employment Act, 2007. 7. THAT the learned magistrate misdirected himself on the applicable law and legal principles when he awarded the Respondent KShs. 40,570 in unpaid leave days when no evidence had been adduced by the Respondent that she had not proceeded on leave. 8. THAT learned magistrate misdirected himself by awarding the Respondent KShs. 31, 000.00 for the staff welfare scheme, which is a separate body from the Appellant. **Analysis and Determination** 1. The role of this Court as a first Appellate Court is well settled. This being a first appeal, my mandate is to re-appraise the evidence and draw my own conclusions. The case of **Sumaria & Another v Allied Industries Ltd [2007] KLR1** elaborated on the extent of the mandate, thus; ***“Being a first appeal, the court was obliged to consider the evidence, re-evaluate it and make its own conclusions bearing in mind that a court of appeal would not normally interfere with a finding of fact by the trial court unless it was based on misapprehension of the evidence or that the judge was shown demonstrably to have acted on a wrong principle in reaching the finding he did.”*** 1. Having carefully perused the record and considered the submissions made and authorities cited by the parties, the following limited issues are wholly dispositive of the appeal. 2. Whether the Respondent’s employment was fairly terminated. 3. Whether the Respondent was entitled to the reliefs granted to her by the trial Court. 4. In cause **No. ELRC 1332 of 2018 Showkat Hussein Badat v Oshwal Education M Relief Board,** this Court stated: *“50. The defining characteristic of termination on account of redundancy is the employee's lack of fault. It is a species of “no-fault termination. One cannot be off mark to state that it is for this reason that the* [*Employment*](http://resolver.caselaw.kenyalaw.org/resolver/akn/ke/act/2007/11)[*Act*](http://resolver.caselaw.kenyalaw.org/resolver/akn/ke/act/2007/11) *places particular obligations on the employer, most of which are directed towards ensuring that those employees to be dismissed are treated fairly”.* 22. Both section 2 of the [*Employment Act*](http://resolver.caselaw.kenyalaw.org/resolver/akn/ke/act/2007/11)2007 and section 2 of the [*Labour Relations Act*](http://resolver.caselaw.kenyalaw.org/resolver/akn/ke/act/2007/14)define redundancy as: *“The loss of employment, occupation, job or career by involuntary means through no fault of an employee, involving termination of employment at the employer's initiative where services of an employee are superfluous, and practices commonly known as abolition of office, job or occupation and loss of employment”.* 1. The *locus classicus* case on redundancy under Kenyan Law is **Kenya Airways Limited and Aviation and Allied Workers Union, Kenya & 3 others (2014) eKLR**, where the Court of Appeal stated: “There are two broad aspects of this definition. The first *one is that the loss of employment in redundancy cases has to be by involuntary means and at the initiative of the employer; it should not be a contrived situation. It has to be non-volitional. I understand this to refer to a situation, in most cases, an economic downturn, brought about by factors beyond the control of the employer, which leaves the employer with no option but to take an initiative, the consequences of which will be inevitable loss of employment………”* 1. Although the law does not confer an inherent right to lifelong employment, the social balance established by a constitutional framework recognises the right to fair labour practices as fundamental. This affords employees protection against unfair dismissal. At the same time, it gives employers the authority to dismiss an employee for a valid reason, provided proper procedures are followed. The employer bears the onus of demonstrating to the court that a legitimate redundancy situation existed, justifying a fair and valid rationale for terminating the employee's employment. Throughout her case before the trial court, the respondent maintained that the appellant terminated her employment without any genuine basis. Essentially, the respondent contended that the events constituted an unfair termination disguised as redundancy. 2. This Court notes the Appellant’s Counsel’s submissions that the Appellant placed sufficient evidence before the trial Court, from which it was clearly discernible that a genuine redundancy situation existed, and that, as such, the termination of the Respondent’s employment was based on a fair and valid reason. These submissions are unpersuasive for the reasons that will emerge shortly. 3. This Court has repeatedly emphasised that simply claiming an organisation underwent restructuring, making some positions redundant, is not enough. Employers should provide sufficient details, and this requirement is heightened, especially if the employee challenges the redundancy or claims it was camouflaged. 4. The process of restructuring and declaring redundancy is not a single event; rather, it constitutes a series of actions. In circumstances such as those presented in the case before the lower court, it would be reasonably anticipated that the employer would provide evidence regarding: when the concept of restructuring was first conceived; the rationale behind this concept; the dates when discussions about the idea occurred; the specific date when a decision was made regarding the restructuring; and the considerations regarding the steps necessary to facilitate the restructuring process, culminating in the exit of those affected. 5. I have carefully considered the evidence provided by the Appellant’s witness and do not hesitate to state that it was overly focused on the performance of the marketing department rather than redundancy. Further, in my view, it was not clearly explained what happened to the marketing department, whether it was fully abolished or restructured, how many employees of that department were affected by the alleged redundancy, and, if not all, how those who remained were dealt with. In the absence of these details, a conclusion that there was no redundancy situation is inevitable. 6. Indeed, during cross-examination, the Appellant’s witness admitted that the meeting on 15 December 2022 concerned performance and evaluation, rather than redundancy. 7. I have carefully examined the termination notice and the statement of the Appellant’s witness; in my view, neither accurately reflects the existence of a redundancy situation. The Respondent was accused of inadequate performance; however, for reasons known to the Appellant, it terminated her employment under the pretext of redundancy. 8. The termination letter asserts that the Appellant decided to abolish the Marketing department and outsource the services the department provided. If indeed this was true, nothing could have been easier than the Appellant placing before the trial Court evidence demonstrating the existence of that outsourcing arrangement. 9. By reason of the foregoing premises. I come to the conclusion that, as was asserted by the Respondent before the trial Court, the purported redundancy a sham. There existed no genuine redundancy situation. The termination was therefore not for a fair and valid reason. It was substantively unfair by virtue of section 45 of the Employment Act. 10. I now turn to consider whether the termination of the Appellant’s employment was procedurally fair. Section 40 of the Employment Act sets out a mandatory procedure that an employer must follow when terminating an employee on account of redundancy. The section provides: *“An employer shall not terminate a contract of service on account of redundancy unless the employer complies with the following conditions-* 1. *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:* 1. *where an employee is not a member of a trade union, the employer notifies the employee personally in writing and the Labour officer;* 2. *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;* 3. *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;* 4. *the employer has where leave is due to an employee who is declared redundant, paid out the leave in cash;* 5. *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* 6. *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.’’* 2. Inarguably, the Appellant’s employment was terminated through a letter dated 30 January 2023. The question at this point is whether the letter constituted the notice(s) contemplated by section 40(1) of the Employment Act, and whether it was sufficiently formulated to fulfil the objectives for which that section is established. 3. In the **German School Society v Helga Ohany as Consolidated with Civil, 342 of 2018 Helga Ohany v The German School Society [2023] KECA 894[KLR]**, Court of Appeal stated; *“ Having regard to the legislative intention of the provision of section 40 of the* [*Employment*](http://resolver.caselaw.kenyalaw.org/resolver/akn/ke/act/2007/11)[*Act*](http://resolver.caselaw.kenyalaw.org/resolver/akn/ke/act/2007/11)*, and International Law and decided cases, we find that consultation on an intended redundancy between the employer and the employee is implied by section 40[1][a] and [b] of the* [*Employment Act*](http://resolver.caselaw.kenyalaw.org/resolver/akn/ke/act/2007/11)*. Moreover, consultation is also specifically required by Article 47 of* [*the Constitution*](http://resolver.caselaw.kenyalaw.org/resolver/akn/ke/act/2010/constitution) *and the* [*Fair Administrative Action Act*](http://resolver.caselaw.kenyalaw.org/resolver/akn/ke/act/2015/4)*. Article 47 and section 4[3] of the* [*Fair Administrative Action Act*](http://resolver.caselaw.kenyalaw.org/resolver/akn/ke/act/2015/4) *provide that where an administrative action is likely to adversely affect the rights or fundamental freedoms of any person, the administrator shall give notice to the person affected by the decision. [ See. Cargill Kenya Limited v Mwaka & Others, para 35-37].”* 1. In my view, the letter served on the Respondent is nothing other than a termination letter. It is critical to note that, from the material presented before the trial Court by the Appellant, this was the only correspondence from the Appellant to the Respondent. 2. A redundancy notice, which I have concluded was neither issued nor served on the Respondent, gives rise to the event of consultation prior to the declaration of redundancy. Under our legal framework, consultation is imperative. The importance of consultation during a redundancy process cannot be overstated. This necessity was effectively articulated by Maraga JJA (as he then was) in the Kenya Airways case (supra). The Appellant failed to present any evidence at trial demonstrating that consultations had occurred prior to the termination. The Respondent’s assertion that such consultations did not take place was not challenged. 3. Having concluded that the requisite notice envisaged under Section 40[1][b] of the Employment Act was not issued to the Respondent, and that no consultations between the Appellant and Respondent preceded the termination alleged that was alleged to be on account of redundancy, I come to the inescapable conclusion that the alleged termination was procedurally unfair. **Of the relief grantable** 1. The Appellant had sought, inter alia, compensation of 12 months’ gross salary for unlawful and unfair termination. This Court takes cognisance of the fact that 12 months’ gross salary is the maximum compensatory amount provided under section 49(1)[c] of the Employment Act. Granting this relief is discretionary, and the grant of relief depends on the circumstances of each case. 2. The learned trial Magistrate, having found that the termination was unfair, though on a ground, and I agree with Counsel for the Appellant’s submissions, which was not legally sound, awarded the Respondent compensation for unfair termination to the extent of six months’ gross salary. 3. I have considered the circumstances surrounding the termination of the Respondent’s employment, my finding that the ground for termination was not fair and valid, the fact that the Respondent did not contribute to the termination in any proven manner, and the Respondent’s length of service with the Appellant, and conclude that the learned trial Magistrate did not err in holding that the Respondent was entitled to compensation and in awarding compensation to the extent he did. 4. Critically, the Appellant has not, in this appeal, challenged the award on any of the legally recognised grounds on which an Appellate Court can disturb a discretionary award of a lower Court. 5. The Appellant contended in this appeal that the learned trial Magistrate erred in law and fact when he directed that the Respondent be refunded welfare contributions, alleging that the welfare scheme was a separate legal entity from the Appellant. I have carefully considered the evidence placed before the learned trial Magistrate by the Appellant. I see no part of it from which it can be deduced that there existed a scheme, a legal person independent of the Appellant. In the circumstances, I have no sound reason to disturb the award of the trial Court. 6. In the upshot, I find the Appellant’s appeal herein lacking in merit. It is hereby dismissed with costs. **Read, Signed and Delivered this 24th Day of June 2026.** **OCHARO KEBIRA** **JUDGE**