Kimathi v Ericsson Kenya Limited (Civil Appeal 601 of 2019) [2023] KECA 106 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that redundancy is a valid ground for termination, but employers must use fair, transparent selection criteria or face unfair dismissal findings.
What this practically means
#Executive summary
#Key legal issues
#Whether the retrenchment was a sham and the redundancy unfair
The redundancy was unfair because the selection criterion used was not transparent, not because redundancy is an invalid reason for termination
The Court affirmed the trial court's finding of unfair redundancy but departed from its reasoning: redundancy is itself a valid reason for dismissal under the statutory definition. The unfairness lay in the selection process. The respondent led no evidence of a clear, transparent criterion, of why the appellant alone was required to apply for relocation to South Africa, or of formal consultation meetings. Making an employee apply for her own job is not a selection criterion and such restructurings must be closely scrutinised as they can be used to eradicate unwanted employees.
Whether the award of 4 months' compensation should be increased to 12 months
No; the trial court's discretionary award was properly made and the appellate threshold for interference was not met
Remedies under section 49 are discretionary, guided by the 13 considerations in section 49(4). An appellate court interferes only where the judge misdirected himself, misapprehended the facts, considered extraneous factors or failed to consider relevant ones. The trial court considered the five years of service and the terminal dues already paid. No failure to consider the statutory factors was demonstrated, so the discretionary award stood.
Whether the appellant proved discrimination on account of pregnancy and motherhood
No; the appellant failed to discharge her burden of proof and the respondent proved the discrimination did not occur
Article 27(4) of the Constitution and section 5 of the Employment Act prohibit discrimination on grounds including pregnancy, and section 46 makes pregnancy-related reasons unfair grounds for dismissal. However, section 47(5) places the burden of proof on the employee, after which the employer must justify under section 43. The respondent showed it approved 21 days' sick leave, allowed working from home and offered a right of refusal for the South African role; the appellant's allegations were not proved to the required standard.
Claim for 5 unpaid sick leave days and authenticity of the Labour Officer letter
The leave claim was overtaken by events as the pay slip showed a leave allowance paid; the authenticity issue was raised too late on appeal
The parties' submissions did not align with the ground of appeal on leave allowance, but the pay slip showed an allowance of Kshs 43,391.44 was paid. On the letter to the Labour Officer, the authenticity objection was never raised before the trial court; under Warehousing and Forwarding v Jafferali and Visram & Karsan v Bhatt a new point on appeal is only entertained if the facts, if fully investigated, would have supported it, which was not established.
Legal principles established
#- Section 40 of the Employment Act is couched in mandatory terms and compliance is necessary but not conclusive of fairness; the wider guarantees of fair administrative action and natural justice also apply to retrenchment.
- A redundancy is a valid reason for termination; unfairness in a redundancy lies in an unfair or non-transparent selection criterion or its unfair application.
- Making an employee re-apply for their own job is not, per se, a fair selection criterion and such processes must be closely scrutinised by courts.
- A dismissal based on a selection criterion that is not fair and objective, or not applied consistently and transparently, is substantively unfair.
- Under sections 47(5) and 43 of the Employment Act, an employee alleging unfair discrimination bears the burden of proving it, after which the employer must prove it did not occur or was justified.
- A new point of law not raised before the trial court cannot be argued on appeal unless the facts, if fully investigated, would have supported the plea.
Court orders
#- 1.The appeal is dismissed
- 2.The appellant shall pay the costs of the appeal to the respondent
- On appeal from
- Employment and Labour Relations Court
- Not stated in judgment
- Jurisdiction invoked
- First appeal to the Court of Appeal under the applicable appellate statute (not expressly cited in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (3)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Macharia v Standard Chartered Bank Kenya Ltd (Civil Appeal E717 of 2024) [2026] KECA 1276 (KLR)[2026] KECA 1276 (KLR)3 Jul 2026followed
- Sinohydro Tianjin Engineering Company Limited v Kalee & another (Employment and Labour Relations Appeal E015 of 2024) [2025] KEELRC 3733 (KLR)[2025] KEELRC 3733 (KLR)17 Dec 2025
- Mureu v Ressourcethica Kenya Limited (Cause E463 of 2023) [2025] KEELRC 1912 (KLR)[2025] KEELRC 1912 (KLR)27 Jun 2025
Cite this brief
#Cite this brief
Caselaw, "Kimathi v Ericsson Kenya Limited (Civil Appeal 601 of 2019) [2023] KECA 106 (KLR)", Case Analysis (2023). Civil Appeal No 601 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/106/eng@2023-02-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.