Otega v Nokia Solutions and Network Branch Operations Branch OY, Kenya (Cause E505 of 2024) [2026] KEELRC 1754 (KLR) (25 June 2026) (Judgment)

Otega v Nokia Solutions and Network Branch Operations Branch OY, Kenya (Cause E505 of 2024) [2026] KEELRC 1754 (KLR) (25 June 2026) (Judgment) Neutral citation: [2026] KEELRC 1754 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Cause E505 of 2024 ON Makau, J June 25, 2026 Between Byron Otega Claimant and Nokia Solutions and Network Branch Operations Branch OY, Kenya Respondent Judgment Introduction 1.By a Statement of Claim dated 4th July 2024, the Claimant sued the respondent alleging that the termination of his employment on account of redundancy was unfair and prayed for the following:-a.A declaration that the Claimant's termination on account of redundancy was substantially and procedurally unfair;b.An award of 12 months' salary Kshs. 8,028,915.60 and annual car allowance of Kshs. 1,800,000 as compensation for unfair termination of Claimant's employment;c.Sales incentives dues of Kshs. 1,717,428.06;d.Interest on (b) and (c) above at court rates until payment in full;e.Certificate of Service; andf.Costs of the suit. 2.The Respondent filed a Memorandum of Response dated 21st August 2024 denying that the termination was unfair and averred that the termination was on ground of redundancy and the procedure under section 40 of the Employment Act was followed. Therefore, it prayed for the suit to be dismissed with costs. 3.The Claimant filed a Reply to the Memorandum of Response dated 24th September 2024 joining issues with the Respondent and reiterating the contents of the Statement of Claim. Facts in brief 4.The claimant was employed by the respondent as Customer Solution Manager effective 15th April 2013. He was based in Nairobi and his monthly salary was Kshs 330,000. In July 2021, the respondent got an award to rollout new network for Safaricom in Ethiopia and the claimant was requested to be part of the team for the Ethiopia Project. 5.Effective 1st November 2021, he was appointed Account Manager – Network Infrastructure (NI) for (Customer Experience (CX) Ethiopia working in Ethiopia but with home office in Kenya. He was moved to CX MEA CBT VF MEA CT Vodacom TZ and reporting Martin Hugh Talbot. His main responsibility was to act as the main contact point for a new Mobile Carrier Service Provider in Ethiopia for Network Infrastructure. His annual basic salary was Kshs.8,028,915.60, annual car allowance of Kshs.1800,000 and sales Incentives calculated on the basis of direct sales he made. 6.In February 2022, he was given a Short Term Assignment (STA) to Ethiopia in his position as Account Manager- NI for CX Ethiopia, for a duration of six months from 1st March 2022 to 31st August 2022, renewable by mutual agreement between the parties. During the STA he was entitled to additional payment for the STA including 39€ net daily STA allowance, 36€ net daily country allowance and 600€ one lump sum payment for travel assistance for every period of three complete months. 7.The claimant’s STA was renewed to 28th February 2023 and worked until 24th February 2023 when his Line Manger, Martin told him that his STA would not be renewed after lapsing on 28th February 2023. The line manager also informed him that there were plans to localize his role. Finally, the manager told him that he would be placed on a performance improvement plan (PIP) for three months. 8.After 28th February 2023, the claimant returned to Kenya but he would travel to Ethiopia on business travel. On 8th May 2023, he was invited to a meeting with the HR Manager who informed him of an intention to declare his role in Ethiopia redundant as the company was consolidating Kenya and Ethiopia NI Account Managers due to reduced business in Kenya. 9.On 9th May 2023, he was served with a Notice of intended redundancy after expiry of one month. The position of Account Manager NI was then advertised on 29th May 2023 and the claimant applied and he was interviewed. His employment was terminated by letter dated 8th June 2023 on account of redundancy effective 31st July 2023. In the meantime, the HR Manager notified him, on 20th July 2023, that he was not successful in the interview for the advertised position. He was then paid his dues after completing clearance. 8.Before the redundancy, the claimant had raised grievances against his Line Manager, and therefore he alleged that the redundancy was not justified, but one actuated with retaliation and discrimination. The respondent denied that allegation and maintained that the redundancy was due to a genuine business reorganization. 9.After the close of the pleadings, the parties filed a List of the Agreed Issues dated 6th November 2024 setting out the following four issues for determination: -a.Whether the Respondent had valid grounds/reasons to terminate the Claimant's employment;b.Whether the termination followed due process;c.Whether the claimant's termination was on account of redundancy; andd.Whether the Claimant is entitled to the reliefs sought. Evidence 10.The Claimant testified as CW1 and adopted his witness statement dated 4th July 2024 as his evidence in chief. He also produced 16 documents in the list dated 4th July 2024 and 2 documents in the supplementary list dated 24th September 2024 as exhibits. 11.In brief, his testimony echoed the facts highlighted above but added that In July 2021, the respondent got an awarded to rollout new network for Safaricom Ethiopia and one of key stakeholders for Safaricom (Mr. David Odhiambo) requested the respondent to consider him (claimant) as part of the Nokia team for Ethiopia project. As a result, he was allowed to travel to Ethiopia in his capacity as Customer Solution Architect pending interviews for the new role of Account Manager for Network Infrastructure. 12.In October 2021, he was appointed as Account Manager- (NI) for Customer Experience (CX) working in Ethiopia but with home country office as Kenya. The appointment took effect on 1st November 2021. 13.He worked diligently until June 2022 when he started experiencing challenges from his Line Manager Mr. Martin Hugh Talbot including Micro-Management, bullying, harassment and verbal threats. He then lodged complaint with the Respondent’s Ethics and Compliance tool in October 2022 but no feedback was given. 14.He also raised concerns with Mr. Martin and his boss, Toni, that the sales he was making were being truncated via internal process called fair value allocation that reduced his incentive payout immensely. However, the response he got from Martin was that he should focus on pushing for sales and not to look at the truncated sales. Martin then stopped talking to him. Despite all the said challenges he surpassed his sales and revenue targets by over 150%. 15.In January 2023, his friend David Odhiambo resigned from Safaricom Ethiopia to join another entity and on 24th February 2023, Martin called him for an impromptu meeting and told him that his STA would not be renewed after expiring on 28th February 2023; that he would be placed on a Performance Improvement Plan for 3 months and that he wanted him out of the Ethiopia project by June 2023. Mr. Martin also reminded him of the complaint he lodged against him the previous year and told him that his role would be given to local Ethiopian. 16.As a result, he went back to the Ethics and Compliance in February 2023 and lodged another complaint against Mr. Martin for retaliation. Again, no feedback was given until after 4 months, and it was not satisfactory. By then, his STA had expired and not renewed; and he had been issued with notice of intended redundancy of his position. 17.He stated that the position of Account Manager NT was advertised on LinkedIn and internally on 29th May 2023 . He applied for the position and even did two interviews. However, on 20th May 2023 he was notified by the Human Resource Manager that another candidate was awarded the role and he was instructed to handover to him. The appointee happened to be his counterpart, Account Manager NI for Safaricom Kenya, Mr. Chris Kilongosi. On 8th June 2023 he served with letter formally terminating his employment on account of redundancy, with effective from 31st July 2023. 18.He went back to the Ethics and Compliance for the third time in June 2023 and lodged a complaint of retaliation from Martin, but he received a verbal feedback that there was no retaliation. 19.He maintained that the termination was premeditated, unfair, malicious, unjustified and procedural because there was no valid reason for the termination, but just retaliation from his Line Manage; that the reason for the redundancy cited by the HR Manager during a meeting on 8th May 2023 and the one cited in the notice of the intended redundancy dated 9th May 2023, were not the same; that he was not afforded opportunity for consultation to avoid the redundancy; and that no notice was issued on the Labour Officer of the intended redundancy. He contended that the redundancy was a summary dismissal in disguise. 20.As regards the sales incentives, he prayed for Kshs. 2,761,720.44 as per the email dated 25th February 2023 which confirmed the sales target for 2023 (see Page 38, 39 of the Claimant’s bundle). 21.On cross examination, he stated that the reason given for his termination was redundancy. He was made aware of the redundancy exercise in a meeting held on 8th May 2023. He admitted that he was issued with a certificate of service and was paid his terminal dues after the termination. 22.He reiterated that he had raised issues with his supervisor and the issues were investigated but he never got a report. He faulted the investigations for taking too long. He confirmed that he appealed the decision in the report by an email dated 16th June 2023 to a Mr. Neresh. He clarified that he raised his grievance on the ethics and compliance portal and that is also where he raised his appeal as required by company policy. 23.He confirmed that he was aware there was a reorganization, and that it was not only his position that was declared redundant. He also confirmed that a new position was created and he applied for it. He reiterated that he was called for an interview for the new position. 24.He denied that after the termination he was paid all his sales incentives and clarified he was only paid Kshs. 2.5 Million. He contended that the entries for calculations of sales incentives are system generated and maintained that he was not paid all his incentives. 25.In re-examination, he stated that he became aware of the redundancy process on 8th May 2023 when he was called to a meeting by the Human Resource and Head of Safaricom team. He stated that during the meeting he was informed that there was reduced business in Kenya so, the roles Kenya and Ethiopia would be consolidated and his position would be declared redundant. He was the issued with letter of notice of the intended redundancy dated 9th May 2023 and a termination letter dated 8th June 2023. He reiterated that before the termination notice, he had applied for the new position on 29th May 2023. 26.His contended that his appeal was received by a representative of the Respondent and he saw email dated 16th June 2023 from Neresh confirming receipt of his appeal. He then got feedback on his appeal through a phone call from Neresh, one week before he left the company. The feedback was that there was no case and he needed to adopt to his supervisor's living style. He never discussed his appeal with Neresh until he left employment on 31st July 2023. 27.The Respondent called its Human Resource Manager, Josephine Ndunge, as RW1. She adopted her witness statement dated 21st August 2024 as her evidence in chief and produced five documents in the Respondent's list dated August 2024 as exhibits. 28.In brief, her evidence was that there was reorganization within Vodafone Customer Team which impacted the customer Team in Ethiopia. This was done to increase efficiency and ensure long term competitiveness and capability to invest in the future. 29.As a result of the foregoing, the Respondent issued notice to the Labour Officer on 26th April 2023 and Section 40 (1) (e) of the Employment Act. The notice was in respect to two position, CX MEA CBT VF MEA CT Safaricom Kenya, and CX MEA VF MEA Safaricom Ethiopia. As a result, the Claimant’s role of Account Manager NI for CX Ethiopia was declared redundant. 30.This decision was communicated to the Claimant in a meeting held on 8th May 2023 where he was also given an opportunity to air his grievances. A formal notice was served on 9th May 2023. The impacted employees were to be given priority in any vacant positions but the positions would be open to external job market in the event of suitable skills and competences could not be found internally. 31.The Claimant applied for the role of Account Manager NI Ethiopia but failed to meet all the requirements and the Respondent released him and pursued another person. The Claimant was paid his terminal dues including severance pay and he was issued with a certificate of service. 32.He denied the alleged retaliation and maintained that there was a valid reason for the redundancy. He further stated that the proper procedure was followed including notification to the Claimant and Labour Officer. 33.She maintained that the Claimant was dismissed on account of redundancy and the justification was that there was reorganization whereby two positions were collapsed into one. She also maintained that proper procedure was followed as notice was served on the labour office and the affected staff, consultations were also and the staff given a chance to apply for alternative positions. For those reasons she prayed for the sought to be dismissed for lack of merits. 34.On cross examination, she reiterated that the claimant exited on account of redundancy. She stated that the Labour Officer and Claimant were served with redundancy notices dated 26th April 2023 and 9th May 2023 respectively. She signed the notice to the Labour office but never copied it to the Claimant or any other staff of the Respondent. the notice stated that there were changes in the Respondent's structure. She confirmed that the said changes were made earlier in the year. 35.She confirmed that the Notice to the Labour Office stated that the impacted persons would enjoy priority in the event of occurrence of vacancies. She admitted that the Respondent advertised vacancies before declaring redundancies. She admitted that the vacancy for Accounts Manager was advertised on 29th May 2023 to the General Public and there is no evidence that priority was given to the Claimant. 36.She confirmed that the Claimant was issued with redundancy notice on 9th May 2023 after a meeting on 8th May 2023. She stated that the termination was on account of reduced business in Kenya. She stated that as at 9th May 2023 a decision had been made to declare Claimant's position redundant. She contended that consultations were done on 10th May 2023 as per the minutes (Document 2). She admitted that the minutes were not mentioned in her witness statement, and they are not signed. She further admitted that the minutes do not disclose any consultation. However, she contended the issues raised, and on which she was to revert, were dealt with. 37.She contended that the Claimant raised his grievances after the Redundancy Notice. There was only one position in Safaricom Kenya and one Safaricom Ethiopia, but only one was terminated leaving the one which was based in Safaricom Kenya. There is no evidence to prove that the Claimant was paid all his sales incentives before being declared redundant. 38.She admitted that the Claimant raised his first complaint of harassment by his Line Manager on 10th October 2022 and no feedback was given. 39.In re-examination, she stated that she personally served Redundancy Notice on the Labour Officer on 26th April 2023. She confirmed that the Claimant held the position in Safaricom Ethiopia. She indicated that priority was to be given to impacted persons upon advertisement of new vacancies. She invited the impacted persons to the new position after collapsing the former positions. The person who was picked was more qualified in terms of skills. 40.She stated that consultations are held after serving the Labour Office with a redundancy notice. She further stated that the Respondent tried to see whether Claimant could fit in the new role and subsequently, notified him of the failure to qualify. 41.She explained that the Sales incentive plan was based on 60% of the annual basic salary. At the beginning of the year the sales teams are given targets which will be used to pay the incentives on quarterly basis. The employee was paid as per the sales targets margins and the evidence of payment is the payslips on record. Submissions 42.After the close of the hearing, the parties filed detailed written submissions. The Claimant filed his main submissions dated 2nd March 2026 and further submissions dated 23rd March 2026, while the Respondent’s submissions were dated 16th March 2026. 43.Having considered the pleadings, evidence and submissions, there is no dispute that the claimant was employed by the respondent from 4th April 2013 to 31st July 2023 when his services were terminated by the respondent on account of redundancy. It is also not in dispute that after the termination, the respondent paid the claimant terminal dues and issued him with certificate of service. The claimant has challenged the termination terming it unfair and unlawful. 44.Section 45(2) of the Employment Act provides that: -“(2)A termination of employment by an employer is unfair if the employer fails to prove:(a)that the reason for the termination is valid;(b)that the reason for the termination is a fair reason…(i)related to the employee's conduct, capacity or compatibility; or(ii)based on the operational requirements of the employer; and(c)that the employment was terminated in accordance with fair procedure." 45.The above law balances the employers right to terminate a contract of employment, on the one hand, with the employees right to fairness and dignity, on the other hand. The legal principle is that the employer must have evidence to back his decision and to demonstrated that a fair procedure was followed before the termination. In this case, the parties have invited this court to determine the following main issues: -a.Whether the Respondent had valid reasons to terminate the Claimant's employment;b.Whether the termination followed due process;c.Whether the Claimant is entitled to the reliefs sought. Analysis Reason for the redundancy 46.The Claimant contended that his termination on account of redundancy was substantively unfair because there was no valid reason for the termination, the reason given targeted a single employee, the termination was a retaliation for complaints he raised against his line manager disguised as redundancy, and that the Respondent failed to consider his exemplary performance. The Respondent contended that the redundancy arose from a genuine operational restructuring affecting teams across multiple jurisdictions. 47.Section 2 of the Employment Act defines redundancy as follows:-“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”. 48.Section 40(1)(a) (b) of the Employment Act, 2007 provides that:-“(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;”[emphasis added]. 49.Redundancy has been found to be a valid reason for termination in a legion of court decisions, provided there is a redundancy situation. The Court of Appeal discussed redundancy in Thomas De La Rue (K) Ltd v Oumtelema [2013] KECA 492 (KLR) where it observed that:“There is a heavy burden of proof placed upon the employer to justify any termination of employment. As stated earlier, the appellants here ought to have give “the reason and the extend of the redundancy” but there is no evidence on record sufficient to discharge that burden.” 50.In Kenya Airways Limited v. Aviation & Allied Workers Union Kenya & 3 Others (Civil Appeal 46 of 2014) [2014] KECA 403 (KLR), observed that: -“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 fair procedureThe decision to declare redundancy has to be that of the employer. In the above New zealand case of G. N. Hale & Son Ltd, it was held that so long as the employer genuinely believed that there was a redundancy situation, then any dismissal was justified, and it was not for the Court, or the union, to substitute their business judgment with that of the employer. The decision to declare redundancy, as I have said, is that of the employer based on purely commercial considerations and not principles such as sustainable development, noble and lofty as it may be.” 51.In Cargill Kenya Ltd v. Mwaka & 3 Others [2021] KECA 115 (KLR),the Court of Appeal held that:-“Thus, redundancy is a legitimate ground for terminating a contract of employment provided that there is a valid and fair reason based on the 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 a 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 may be underlying causes leading to a true redundancy situation, such as reorganization, the employer must nevertheless show that the termination is attributable to the redundancy – that is, that the services of the employee has been rendered superfluous or that redundancy has resulted in the abolition of office, job or loss of employment.” 52.The legal principle running through the above precedents and the statutory provision is that before basing a termination of employment on redundancy, the employer must have a valid reason related to operational requirement of his enterprise. It is not enough to cite restructuring or reorganization. The employer must show by evidence that he has genuinely undertaken business restructuring or adopted new technology or made some other genuine commercial decision that has rendered the services of his employee superfluous. It must be shown that the employer’s commercial decision culminated in abolition of roles, merger of roles, adoption of new technology or closure of the business or departments. 53.In the instant case, RW1 testified that the redundancy herein was triggered by the reduced business in Kenya and reorganization of Vodafone Customer Team which necessitated a merger of the two roles of Account Manager – NI for CX for Safaricom Kenya and the Ethiopian counterpart. The two positions were also referred to as, CX MEA CBT VF MEA CT Safaricom Kenya and CX MEA CBT VF MEA Safaricom Ethiopia respectively. 54.The result was creation of a new position of Account Manager – NI for (Safaricom Kenya and Safaricom Ethiopia) while the former positions of Acount Manager – NI for CX Ethiopia were declared redundant. A notice to the Labour Officer dated 26th April 2023 (Exhibit D.1) indicated that the said two positions were affected. 55.The claimant’s substantive position was Account Manager – NI for CX Ethiopia working from Kenya. His appointment letter dated 19th October 2021 stated that he would be reporting Martin Hugh Talbot and he would be moved to CX MEA CBT VF MEA CT Vodacom TZ. The job description (JD) for the position of Account Manager – NI for CX Ethiopia – 2100000CMU is on page 15 of the claimant’s bundle of exhibits. The JD for new role created after the reorganization found on page 30 of the claimant’s bundle of exhibits. The job title was Account Manager – NI-23000002O0. 56.Having considered the JD for the two positions, as detailed in page 15 and 30 of the claimant’s bundle, I honestly see no difference. The JD for the two position is the same save for the main responsibility area for the new position which was expanded from being a main contact point for mobile carrier provider in Ethiopia Network Infrastructure to being:“a main customer (Safaricom Ethiopia and Safaricom Kenya) contact point for Network Infrastructure sales.” 57.Having carefully considered the evidence presented, it clear that the claimant’s position of Account Manager – NI for CX Ethiopia was merged with the Kenyan counterpart to create a new and elevated position of Account Manager – NI for Safaricom Kenya and Safaricom Ethiopia. The court finds that the employer was entitled to make the said commercial decision of merging the two similar positions into one, if in its view, that was the right move for the business. 58.However, the critical question to answer is whether the said merger rendered the claimant’s services in the company superfluous. The answer is no because RW1 produced an Investigation Report dated 30th March 2023 confirming that the role of Account Manager NI in Ethiopia had not been abolished and that indeed a couple of Ethiopians Account Managers had been appointed just before the impugned redundancy. It follows that the claimant’s services, as an Account Manager NI was still required in Safaricom Ethiopia where he was working before the impugned redundancy. 59.Having carefully evaluated the evidence before the court, I find that the respondent has failed to prove on a balance of probability that the reorganization of its business, led to abolition of the claimant’s role and rendered his services superfluous. Accordingly, my conclusion on this part is that the impugned redundancy was not justified by a valid reason. Procedural fairness 60.Section 45(2)(c) of the Employment Act, 2007 places on the employer the burden of proving that termination of employment contract was done in accordance with fair procedure. With respect to termination on account of redundancy, Section 40(1) of the Employment Act, 2007, is set out a specific and mandatory procedure to be followed, thus: -“(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.” 61.Having repeatedly read section 40 of the Act, the ILO convention 158 on termination of employment and the local jurisprudence, it is clear to me that an employer must take the following mandatory steps before terminating his employee’s employment on account of redundancy: -a.Notification of the intended redundancy. Here the employer must issue a written notice to the area Labour Officer and the employees or the employees’ trade union if the employees are members of a union. The notice must be given at least one month prior to the termination date, and it must state the reason for redundancy. This notice is a general announcement meant to usher the parties into the next mandatory step.b.Consultation – here the employer must engage his employees in genuine consultations on the reason for the termination, any alternatives to redundancy including redeployment, the selection criteria, and most vital the redundancy package if the exit becomes unavoidable.c.Selection – here the employer must use fair selection criteria including seniority in time, skills, ability and reliability. Redundancy is termination for no fault on the part of the employee and therefore the employer must not victimize or discriminate any employee based on previous disciplinary records.d.Termination letter - here the employer must issue a termination notice to the selected employees setting out the redundancy package payable to them, which must be fashioned along section 40 of the Employment Act or the employee’s contract.e.Payment of redundancy dues – the employer must pay the exit package after the employee completes clearance. The minimum redundancy package is set out in section 40(1) of the Employment Act including salary in lieu of notice, severance pay, accrued leave, and any unpaid salary/wages.f.Certificate of service – here the employer must issue the exiting employee with a certificate of service. This is mandatory requirement under section 51 of the Employment Act and the failure to comply is an offence punishable by a fine upon conviction. 62.I have carefully considered the evidence on record. The Respondent issued a notice to the Labour Officer dated 26th April 2023 (Exhibit D.1). Thereafter, it invited the Claimant a meeting on 8th May 2023 where the RW1 first notified him of the intended redundancy and he was given an opportunity to address his grievances. A formal notice of intended redundancy was issued vide a letter dated 9th May 2023 and it partly stated as follows:“In light of the this and in accordance with the provisions of section 40 of the Employment Act, 2007, we hereby give one (1) month’s notice of the intended redundancy. During this period, the company will comply with its statutory obligations including consultations.Accordingly, we hereby notify you that termination process of this position will commence upon expiry of one (1) month from the date of this notice.” 63.Both the notice to the labour officer and the claimant were issued more than the one month before the effective date of the intended redundancy. They also cited the reason for the intended redundancy and the targeted positions. They also indicated the willingness to engage the claimant in consultations and to give him available alternative jobs. To that extend I find and hold that the respondent complied with the requirement for notification of the redundancy as prescribed by section 40(1)(b) of the Employment Act. 64.As regards consultations, the emerging jurisprudence is that there must be genuine consultation before redundancy and that proper notification of the intended redundancy is a condition precedent thereto. In Barclays Bank of Kenya Ltd & another v. Gladys Muthoni & 20 others [2018] eKLR the Court of Appeal held: -“We respectfully agree with the views expressed by the two learned Judges. The Constitution in Article 41 is fairly loud on the rights to fair labour practices and we think it accords with the Constitution and international best practices that meaningful consultations be held pre-redundancy. We agree with the trial court that redundancy notices are not mechanical so as to satisfy the motions of the law, and that fair labour practice requires the employer to act in good faith. It is not good faith, for example, to subject innocent employees to making fresh job applications to their employer who was not undergoing a redundancy situation, then vilify them for rejecting the manoeuvre.” 65.In Cargill Kenya Ltd v. Mwaka & 3 Others [2021] KECA 115 (KLR),the Court of Appeal held that:-“The purpose of the notice under Section 40 (1) (a) and (b) of the Employment Act, was to give the parties an opportunity to consider measures to be taken to avert or to minimize the terminations and measures to mitigate the adverse effects of any terminations on the workers concerned such as finding alternative employment. The consultations were meant to cause the parties to discuss and negotiate a way out of the intended redundancy, if possible, or the best way of implementing it if it was unavoidable.” 66.In the Germany School Society v. Helga Ohany [2023] KECA 894 (KLR) the Court of Appeal held that:-“A notice to the employee/trade union/labour officer opens up the door for a consultative process with the key stakeholders.” 67.The purpose of serving the notice of intended redundancy under Section 40 of our Employment Act has its roots in the international labour standards specifically, ILO Convention 158, which was never ratified by Kenya. Article 13(1) of the Convention states that:-“(1)(1) When the employer contemplates termination for reason of an economic, technological, structural or similar nature, the employer shall:a.Provide the workers representatives concerned, in good time, with relevant information including the reason for the terminations contemplated, the number and categories of workers likely to be affected and the period over which the terminations are intended to be carried out;b.Give, in accordance with national law and practice the workers representatives concerned, as early as possible an opportunity for consultation on measures to be taken to avert or minimize the terminations and measures to mitigate the adverse effects of any termination on the workers concerned such as finding alternative employment.” 68.Article 14 of the convention provides for a similar notice to be given to the competent government authority in accordance with national law and practice as early as possible. Under section 40 (1) (a)&(b) of the Employment Act, the competent authority is indicated as the Labour Officer of the area where the employee works. The Kenyan statute has further clarified in section 40(1) (b) that where an employee is not a member of a trade union the notification will be given to him/her directly and the area labour officer. 69.In this case RW1 stated that consultations were held on 10th May 2023 and the issues that were raised by the claimant were sorted out. However, Rw1 admitted that the minutes for said consultative meeting did not reveal any consultations and they were not even signed. The claimant denied such consultations and maintained that his goose was cooked before the redundancy notice and therefore the redundancy process was a mere box-ticking. 70.I agree with the claimant that, there is no evidence in this case that any meaningful consultations were ever held to try and avoid termination on account of redundancy by offering the claimant any alternative job in the company whether in Kenya or Ethiopia or elsewhere. All that happened was to invite him for interview after he applied for the elevated new position created after the reorganization. 71.The process of filling the newly created position must, however, be distinguished from the intended redundancy process. It is evident that even before the results of the interviews were communicated, the claimant was served with a termination notice. 72.Apart from the new and elevated position widely advertised, he was never invited for any consultations about his willingness to take the said job before the advertisement, or any other positions of an Account Manager NI in the company. As noted above, the role had not been abolished in Ethiopia and the business there, was booming. There is also no evidence to show that the claimant was given any other alternative job to avoid the termination or to mitigate the effects of the redundancy. 73.As, regards selection, the respondent issued the claimant with a termination notice without conducting any fair selection to identify the persons to be laid off. The claimant was at all material times employed as an Account Manager NI for CX Ethiopia and after him a couple of Ethiopians had joined the company. The respondent was having a booming business in Ethiopia and the claimant was the pioneer Account Manager NI there, with a stellar performance of 150% just before the layoff. 74.In the circumstances, the respondent ought to have to conduct a fair selection among the various Account Mangers in Safari Ethiopia as required under section 40 of the Employment Act to identify which one to exit. Fair selection criteria were therefore, necessary to ascertain why the claimant and not any other Account Managers was selected to exit the company. 75.On Page 8 of the Investigation Report dated 30th March 2023, produced by the respondent, the investigator noted as follows:“Martin also identified that while there has been discussion of “localizing” Byron’s role (there had recently been recruitment of a couple of Ethiopian Account Managers), the likelihood was that his role would be restructured to a single role covering both Kenya and Ethiopia and would – for reasons of practicability – be a Kenyan based role, and one that Byron would be eligible to apply for.” 76.The above report was clear that there were a couple of Ethiopian Account Managers who were recruited just before the report was written in March 2023, and just one month after Martin told the claimant that there was a plan to localize the role of Account Manager NI for the company in Ethiopia. In the circumstances, I find that the respondent has not proved on a balance of probability that there was a fair selection conducted before identifying the claimant as the person to exit on account of redundancy. As noted above, the failure to clinch a new senior position after reorganization, did not automatically disqualify the claimant for the said due process under section 40(1) of the employment Act. 77.The consequence of failure to conduct fair selection was discussed by the Court of Appeal in Kenya Airways Limited v Aviation & Allied Workers Union Kenya [2014] eKLR where Maraga JA (as he then was ) held that: -“My understanding of this provision is that when an employer contemplates redundancy, he should first give a general notice of that intention to the employees likely to be affected or their union. It is that notice that will elicit consultation between the parties... At that initial stage, the employer would not have identified the employee(s) who will be affected." 78.The court went on to state that:“The affected employees were retrenched on the ground of low productivity. Curiously, as the learned judge found, some of those retrenched had scored highly in the annual performance appraisal. The appellant’s Mr. Shivo did not come out clearly on the distinction between performance and productivity. The appellant did not provide any document to show how each employee scored on the productivity assessment. So, it is not clear why the 447 and not the[sic] employees were retrenched.” 79.As regards the issuance of termination letter, it is my view that it was prematurely issued since no meaningful consultation was held to avoid the termination on account of redundancy, and fair selection process was not done in the Ethiopian team of Account Managers – NI. 80.After the claimant failed to clinch the promotion/ appointment to the new position, the respondent should have embarked on the intended redundancy process including consultations and selection of the Account Managers – NI to be laid off. I wish to reiterate that the law does not contemplate an automatic exit for the employee who fails to get a promotion/appointment to a higher position after competitive recruitment. 81.The last two steps of paying terminal dues and issuance of certificate of service were complied with as prescription of section 40 and 51 of the Employment Act, save the claim for sales incentive, which I will address under the issue of the reliefs sought. 82.Having considered the matters highlighted above, I have reached the conclusion that, despite the respondent issuing proper notification of the intended redundancy and paying the claimant terminal benefits including severance pay, I find that the termination was done without meaningful consultations and fair selection as required by section 40 of the Employment Act of Kenya which, as RW1 advised the respondent, applied to the claimant’s contract. 83.In Kenya Airways Limited v Aviation & Allied Workers Union Kenya [2014] eKLR, supra, the Court of Appeal found that the redundancy was unfair and unlawful for failure to hold consultations and conduct fair selection of the employees to be laid off. For the same reasons, and also my earlier conclusion that the redundancy was not justified by a valid reason, I hold that the claimant has proved on a balance of probability that the termination of his employment contract on account of redundancy was unfair within the meaning of section 45 read with section 40 of the Employment Act. Reliefs 84.The primary prayer by the Claimant was a declaration that his termination was substantially and procedurally unfair. I have found that the termination was not justified by a valid reason and was not done in accordance with the procedure under section 40 of the Employment Act. Consequently, I find that the claimant is entitled to declaration that the termination of his employment on account of redundancy was unfair within the meaning of Section 45 of the Employment Act. 85.The Claimant prayed for an award of 12 months' salary of Kshs. 8,028,915.60 and annual car allowance of Kshs. 1,800,000 as compensation for unfair termination. Section 49(1)(c) of the Employment Act provides for compensation not exceeding twelve months' gross wages. 86.In OI Pejeta Ranching Ltd v Muhoro [2017] KECA 329 (KLR) the Court of Appeal stated that in deciding the quantum of compensation to award, the Court must take into account the factors set out under Section 49(4) of the Employment Act including the wishes of the employee, circumstances in which the termination took place, the extent of the employee's contribution, length of service, and the conduct of the employee which caused or contributed to the termination. 87.In this case, the Claimant served the Respondent for over ten years, from April 2013 to July 2023. He had a clean disciplinary record and, according to his uncontroverted evidence, he surpassed his sales and revenue targets for 2022 by more than 150%. The Respondent acknowledged in its witness statement that "despite the claimants alleged exemplary performance there was still a need to proceed with the reduction." 88.The claimant was serving under a permanent and pensionable contract and therefore he had legitimate expectation to continue working and earning an income for years. He was also in a senior position in the company, and chances of securing an alternative job within a period of one year may be slim. 89.I have also considered that a couple of Ethiopians were employed as Account Managers just before the claimant, who was a pioneer Account Manager, was laid off. The lay off was also done before his grievances against his Line Manager were resolved. On the whole, I would say that the claimant went home unhappy because of the unfair and undignified manner in which he was treated in the project he diligently served for ten years abroad as a pioneer Account Manager – NI. Considering the above matters, I award him 12 months gross salary as compensation for unfair termination to cushion while in his job hunt. 90.The Claimant relied on the KUDHEIHA v Nairobi Hospital case where the court awarded the maximum 12 months' salary because the employer failed to demonstrate a transparent process or produce evidence of objective selection criteria. The Claimant also relied on D.K. Njagi Marete v Teachers Service Commission [2013] KEELRC 575 (KLR) where the court awarded maximum compensation to the claimant who had served for a period of six years. 91.The Claimant's annual salary at the time of termination was Kshs. 8,028,915.60 plus annual car allowance of Kshs. 1,800,000 totaling to Kshs. 9,828,915.60, which I award him as compensation for the unfair and unlawful termination. Sales incentives 92.The Claimant prayed for outstanding sales incentives of Kshs. 1,717,428.06. The Respondent contended that all incentives due to the Claimant were paid in accordance with the Sales Incentive Plan guidelines. 93.The Claimant produced evidence of his sales target for 2023 (pages 38-39 of the Claimant's bundle) showing an annual target of 6 Million Euros. He produced a detailed computation of pending sales incentives at page 51 of his bundle showing sales of 5,578,771.43 Euros and a prorated incentive entitlement of Kshs. 4,479,148.50. He produced payslips (pages 40-50) showing that he was paid Kshs. 1,562,393.02 in March 2023, Kshs. 570,147.74 in June 2023, Kshs. 409,701.11 in September 2023, and Kshs. 219,478.57 in December 2023, totalling Kshs. 2,761,720.44. The balance claimed is Kshs. 1,717,428.06. 94.The Respondent argued that the Claimant's computation was inherently implausible, particularly the alleged Quarter 3 sales of EUR 4,440,000, given that the Claimant's employment ended in July 2023. The Respondent argued that the Claimant failed to produce documentary evidence from the Redbox system to verify the sales. 95.The Respondent relied on Sections 107 and 109 of the Evidence Act on the burden of proof. The Claimant relied on Onesmus Kinyua Magoiya v Prudential Life Assurance Kenya to urge that once an employee provides evidence of entitlement or performance, the evidential burden shifts to the employer to prove that payment was made or that performance did not qualify. 96.I have considered the evidence on record. The Claimant produced an email dated 25th February 2023 (pages 38-39) confirming his sales target for 2023. He produced a self-generated Excel spreadsheet at page 51 showing his claimed sales. However, no independent verification of these sales was produced. No purchase orders, contracts, or customer confirmations were exhibited. The Respondent's witness testified that SIP payments are calculated based on entries from the Redbox system which are signed off by the employee. No party produce any Redbox extracts or evidence that the Claimant signed off on any specific sales figures. 97.The burden of proving that he generated the claimed sales rests on the Claimant under Section 107 of the Evidence Act. The Excel spreadsheet prepared by the Claimant himself, without any supporting documentation from the Respondent's systems or from customers, is insufficient to discharge that burden. As held in Moi v Murithi & another (Civil Appeal 240 of 2011) [2014] KECA 642 (KLR), submissions cannot take the place of evidence and self-generated documents without verification do not constitute proof. Consequently, I decline to grant the claim for outstanding sales incentives of Kshs. 1,717,428.06 for lack of sufficient evidence. Certificate of Service 98.The Claimant prayed for a Certificate of Service. The Respondent stated in its Memorandum of Response that the Claimant was issued with a certificate of service, copy of which was produced as an exhibit. Section 51(1) of the Employment Act obligates the employer to issue a certificate of service upon termination. There is no evidence that the certificate shown to the court was ever issued to the claimant after being drawn. Consequently, I order the Respondent to forthwith issue a Certificate of Service to the Claimant. Conclusion 99.I have found that the termination of the Claimant's employment on account of redundancy was unfair and unlawful within the meaning of Section 45 of the Employment Act. I have further found that the Claimant is entitled to compensation for unfair termination and certificate of service. 100.Consequently, I enter judgment for the Claimant against the Respondent as follows: -a.Declaration that the termination of the Claimant's employment on account of redundancy was unfair and unlawful.b.Compensation for unfair termination pursuant to Section 49(1)(c) of the Employment Act – Kshs. 9,828,915.60 .c.Certificate of Service to be issued by the Respondent to the Claimant if not already done.d.The award in (b) above is subject to statutory deductions.e.The Claimant is awarded costs of the suit and interest at court rates from the date of this judgment. DATED, SIGNED AND DELIVERED VIRTUALLY IN OPEN COURT AT NAIROBI THIS 25TH DAY OF JUNE, 2026.ONESMUS MAKAUJUDGEAppearance:Opole for Musyoka for ClaimantOkeyo for Respondent