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Court of AppealDismissedCivil Appeal (Nairobi), memorandum of appeal dated 17th February 2020

Ndung’u & 6 others v Plan International Inc (Civil Appeal 76 of 2020) [2026] KECA 1287 (KLR)

Court of Appeal
10 July 2026
8,263 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~33 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed that employers can carry out redundancies for genuine business reasons as long as they follow the Employment Act's strict procedures.

What this practically means

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Executive summary

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Seven former employees of Plan International Inc appealed against the judgment of Makau J. of the Employment and Labour Relations Court, which had dismissed their claims that their termination in a 2014 restructuring-driven redundancy was unfair, unlawful and discriminatory. The employees were among about forty staff laid off when the respondent restructured to reduce operational costs following reduced donor funding and an organizational review by Active Engagement Consultants. Before the Court of Appeal, the parties compressed the dispute into two issues: whether the termination on account of redundancy was unfair and unlawful, and whether the appellants were discriminated against. On the first issue, the Court applied its decisions in Kenya Airways Ltd v Aviation & Allied Workers Union and Africa Nazarene University v David Mutevu, holding that employers retain managerial prerogative to restructure for efficiency provided the mandatory safeguards of section 40 of the Employment Act are met. It found the redundancy substantially justified despite imperfections in the procurement of the consultants, that the notice requirements of section 40(1)(b) were satisfied, and that the selection criteria in section 40(1)(c) were inapplicable because most positions were abolished and the appellants declined to apply for restructured roles. On discrimination, the Court held the appellants failed to establish a prima facie case on any prohibited ground under Article 27 of the Constitution or section 5 of the Employment Act, so the burden never shifted to the respondent under section 5(7). The Court affirmed the judgment of the trial court and dismissed the appeal with costs to the respondent.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the appellants' termination on the ground of redundancy was unfair and unlawful
  2. 2.Whether the appellants were discriminated against

Key legal issues

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01

Whether the redundancy was substantively justified despite alleged irregular procurement of the restructuring consultants

Holding

The redundancy was substantially justified; internal procurement imperfections did not invalidate the restructuring where valid operational reasons existed.

Reasoning

The Court acknowledged procedural concerns around the sourcing of Active Engagement Consultants but held that the determinative question under sections 40, 43 and 45 of the Employment Act is whether valid operational reasons existed and whether the mandatory procedural safeguards were observed. The respondent established operational inefficiencies, bloated management and reduced donor funding, so the procedural shortcomings did not displace the justification for the redundancy.

p. 13
02

Whether the notice requirements of section 40(1)(b) of the Employment Act were complied with

Holding

The respondent complied; notices issued on 30th June and 3rd July 2014 preceded the Labour Office notification of 7th July 2014 and the September 2014 terminations.

Reasoning

Relying on Africa Nazarene University v David Mutevu, the Court noted that the one-month notice requirement applies to both unionized and non-unionized employees. Redundancy notices were issued to the appellants on 30th June and 3rd July 2014, the Labour Office was notified on 7th July 2014, and terminations took effect in September 2014, satisfying section 40(1)(b).

p. 14
03

Whether the selection criteria under section 40(1)(c) of the Employment Act were violated

Holding

The criteria were inapplicable because most positions were abolished; the appellants declined opportunities to apply for restructured positions.

Reasoning

Most of the appellants' positions were abolished outright, with only the 5th appellant's position downsized. The new and downsized positions were advertised and the appellants were advised to apply but declined, some resigning instead. The statutory selection criteria for choosing among employees of a particular class were therefore not triggered, and the section was not contravened.

p. 15
04

Whether the appellants proved discrimination under Article 27 of the Constitution and section 5 of the Employment Act

Holding

No prima facie case of discrimination was established on a prohibited ground, so the burden never shifted to the respondent under section 5(7).

Reasoning

The appellants did not identify any prohibited ground under Article 27 or section 5 of the Act; their complaint was essentially of unfair targeting. The evidence showed they received the same notices, memoranda and opportunity to apply for reorganized positions as other staff. Allegations that juniors filled some positions did not establish discrimination absent proof of prohibited or arbitrary considerations.

p. 17

Legal principles established

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  • An employer retains the managerial prerogative to reorganize operations and restructure its workforce, provided the law is complied with; a court will not substitute its view of the commercial wisdom of a restructuring.
  • Internal procurement irregularities in the process leading to a restructuring do not invalidate a redundancy unless they invalidate the statutory justification for it.
  • The selection criteria in section 40(1)(c) of the Employment Act apply only where there are employees of a particular class to be selected; where positions are abolished and employees decline to reapply for restructured positions, the criteria are not contravened.
  • Workplace dissatisfaction or managerial disagreement does not, without more, amount to discrimination in law; unequal treatment must be founded on prohibited considerations.

Court orders

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  1. 1.The appeal is dismissed with costs to the respondent

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
Employment and Labour Relations Court, Nairobi
Jurisdiction invoked
First appeal to the Court of Appeal under Rule 31(1) of the Court of Appeal Rules, 2022

Relief refused

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Damages for unfair and unlawful termination by way of redundancy

The respondent complied with section 40 of the Employment Act and the redundancy was substantially justified on operational grounds

p. 14

Damages for discrimination

The appellants failed to establish a prima facie case of discrimination founded on any prohibited ground

p. 17

Damages for defamation, victimization and loss of reputation

No cogent evidence demonstrated that the redundancy was motivated by retaliation or improper considerations

p. 17

Costs

The appeal is dismissed with costs to the respondent.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

For all the foregoing reasons we find that this appeal is lacking in merit and is therefore dismissed with costs to the respondent.
p. 17Disposition
It is so ordered.
p. 17Final orders
an employer retains the managerial prerogative to reorganize its operations and restructure its workforce for purposes of efficiency and sustainability, provided the law is complied with.
p. 12Managerial prerogative
As long as the employer genuinely believed that there was a redundancy situation, any termination was justified and it was not for the court to substitute its business decision of what was reasonable.
p. 12Redundancy test (quoting Kenya Airways Ltd v Aviation & Allied Workers Union)
workplace dissatisfaction or managerial disagreement does not, without more, amount to discrimination in law.
p. 16Discrimination
In our view, the appellants failed to establish a prima facie case of discrimination capable of shifting the burden of proof to the respondent under section 5(7) of the Act.
p. 17Burden of proof in discrimination claims

Issues in the judgment

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minor

The case citation is stated inconsistently in the judgment - the New Zealand authority is rendered as 'Aoraki Corporation Limited v Colin Keith McGavin CA 2 of 1997 [1998] 2 NZLR 276' in one place and 'Aoraki Corporations Limited V. Collin Keith McGavin; CA 2 of 1997 [1998] 2 NZLR 278' in another, with differing reporter page numbers.

minor

The judgment describes the 1st to 7th appellants but the coram lists five named persons suing as administratrices plus three other appellants; the names given in the opening paragraph (e.g. 'Josephine M. Ndung'u') differ from the names used in testimony (e.g. 'Josephine Muthoni, the 1st appellant').

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Ndung’u & 6 others v Plan International Inc (Civil Appeal 76 of 2020) [2026] KECA 1287 (KLR)", Case Analysis (2026). Civil Appeal (Nairobi), memorandum of appeal dated 17th February 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1287/eng@2026-07-10

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.