Kisii University v Kenya University Staff Union (Civil Appeal E145 of 2022) [2024] KECA 656 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that a redundancy is unlawful if an employer skips genuine consultation with the union before issuing redundancy notices, though compensation was reduced from 7 to 3 months' salary.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the declared redundancy was lawful/justified
- 2.Whether the redundancy process was procedurally fair, in particular whether genuine consultations preceded the redundancy notices
- 3.Whether the respondent was entitled to damages, and whether the award of 7 months' gross wages was justified
Key legal issues
#Whether the declared redundancy was lawful/justified
Substantively justified (revenue decline, ERP system rendering clerical roles superfluous), but procedurally unfair because no genuine pre-decision consultations with the Union were held; the redundancy process was therefore unlawful.
The Court held substantive justification existed given the reduction in privately sponsored student fees and automation. However, the notices named specific employees whose positions would terminate after 30 days, leaving no room for genuine consultation. Consultation is implicit in section 40(1), required by Article 47, section 4(3) of the Fair Administrative Action Act, and ILO Convention No. 158/Recommendation 166 via Article 2(6) of the Constitution. The Union's rush to court within 7 days did not excuse the employer, which should have consulted before issuing notices.
Whether the respondent was entitled to damages and the appropriate quantum
Some compensation was justified in lieu of reinstatement notwithstanding that damages were not specifically pleaded, but the award of 7 months' gross wages was excessive; substituted with 3 months' salary.
The Court accepted that an award of compensation is an available relief for unfair termination under sections 49 and 50 of the Employment Act, and that a court may base its decision on an unpleaded issue where the course of trial left it to the court. Applying the section 49(4) factors - impact on livelihood, non-reinstatement, and continued entitlement to redundancy dues - the Court found 7 months' salary excessive and not a due exercise of discretion, and substituted 3 months.
Whether the trial court could sustain employees' contracts by injunctive orders and order payment of salaries up to judgment
Not directly disturbed; the injunctive orders of 21 October 2020 were never discharged, varied or appealed, and remained in force until judgment.
The respondent argued, and the record showed, that injunctive orders preserved the status quo pending determination of the main suit. The appellant did not move to have the orders discharged or varied, nor appeal or seek review of them. The Court did not overturn this aspect, and its variation of the judgment was limited to the quantum of damages.
Legal principles established
#- A lawful redundancy must be both substantively justified and procedurally fair, and consultation with the union must occur at the formative stages, before notices of a final decision are issued.
- The requirement of consultation before redundancy is implicit in section 40 of the Employment Act and reinforced by ILO Convention No. 158 and Recommendation No. 166 as domesticated by Article 2(6) of the Constitution, and by Article 47 and the Fair Administrative Action Act.
- A notice that communicates a fait accompli does not satisfy the consultation requirement; genuine consultations can only be carried out during the formative stages of the redundancy process.
Court orders
#- 1.Appeal allowed in regard to damages, limited to the extent of reducing the damages awarded
- 2.Award of 7 months' salary set aside and substituted with an award of 3 months' salary
- 3.Each party to bear its own costs of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- Employment and Labour Relations Court (trial/Superior Court)
- Not stated
- Jurisdiction invoked
- First appeal to the Court of Appeal under Rule 31(1)(a) of the Court of Appeal Rules
Relief refused
#Appellant's challenge to the finding that the redundancy was procedurally unfair
The Court agreed with the trial court that the failure to consult rendered the process unlawful
Reduction of damages to one month's salary as urged by the appellant
The Court considered the section 49 factors and settled on 3 months
Costs
Each party shall bear its own costs of this appeal.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Generally, for any termination of employment under redundancy to be lawful, it must be both substantially justified, and procedurally fair.
The decision by the University thus did not give an opportunity to the Union to engage with a view to minimising or mitigating the adverse efiects of the redundancies.
We, therefore, set aside the award of 7 months’ salary; and substitute it with an award of 3 months’ salary.
This upshot is that the appeal is allowed in regard to damages, limited to the extent of reducing the damages awarded to 3 months’ salary. Each party shall bear its own costs of this appeal.
Issues in the judgment
#Internal inconsistency in the citation of the Employment Act: the judgment refers to 'section 40 of the Employment Act No. 11 of 2017' while elsewhere describing it as Cap 226 Laws of Kenya (the Act is elsewhere dated 2007)
Typographical errors and stray text in the judgment (e.g., 'efiects', 'superfiuous', and the dangling word 'contested.' after 'the scales were already lopsided!')
Inconsistent dates regarding employee termination: the appellant argued employees 'stood terminated as 31st October 2021' while the notice's effective date of termination was 31st October 2020
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Mberia v Council, Jomo Kenyatta University of Agriculture and Technology (Civil Appeal 430 of 2019) [2025] KECA 730 (KLR)[2025] KECA 730 (KLR)2 May 2025
Cite this brief
#Cite this brief
Caselaw, "Kisii University v Kenya University Staff Union (Civil Appeal E145 of 2022) [2024] KECA 656 (KLR)", Case Analysis (2024). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/656/eng@2024-06-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.