Flamingo Horticulture (K) Ltd v Njoroge
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Validity of the redundancy notice under Section 40(1)(b) of the Employment Act
The appellant never served the 30 days' notice of intended redundancy; the letter of 27th July 2016 was a final termination, not a notice, and payment in lieu of notice did not cure the omission.
The Court applied its prior decisions holding that two separate notices are required: a notice of intended redundancy issued at least one month prior to the employee and Labour Officer, and a notice of termination or pay in lieu. The statutory notice initiates consultation and cannot be paid off. Skipping it is an independent defect rendering the exit process void.
Mandatory consultation before redundancy
Consultation is implied in Section 40(1) and required by Article 47 and the Fair Administrative Action Act; its absence rendered the termination procedurally unfair.
Relying on German School Society and Kenya Airways, the Court held consultation is implicit in fair labour practices; without individual notice, meaningful consultation cannot occur and the process becomes a cosmetic charade. No evidence of consultations was presented before the trial judge, so the redundancy was procedurally unfair.
Discrimination on account of pregnancy
The appellant failed to discharge the burden of proving the redundancy was strictly objective and non-discriminatory; the trial court's discrimination finding was not disturbed.
The Court set out the elements of a discrimination claim and the shifting burden: once a prima facie case is established, the employer must prove the termination was justified by operational requirements independent of the protected status. The appellant's explanation was thin and guarded, failing the two-tier causation test, so the discrimination finding stood.
Double compensation
Compensation for unfair redundancy and general damages for discrimination are distinct remedies for distinct breaches; no double compensation arose.
Drawing on South African authority (Odendaal, ARB Electrical Wholesalers, South African Airways v V), the Court held that a single dismissal may breach two separate statutory obligations, permitting compensation under the unfair dismissal framework and damages for discrimination. The two awards here addressed different heads and were sustainable.
Estoppel by discharge voucher
Signing a discharge voucher does not automatically bar claims for an unprocedural termination.
The Court held that a full and final settlement voucher cannot be used to bypass mandatory procedural requirements under Sections 40 and 41 of the Employment Act, following Thomas De La Rue v Omutelema. The estoppel argument was rejected as going no further than being attractive.
Legal principles established
#- Non-unionized employees are entitled to the same minimum one-month written notice of intended redundancy as unionized employees, by purposive interpretation of Section 40(1)(b) of the Employment Act.
- Failure to issue a redundancy notice cannot be cured by payment of one month's salary in lieu of notice; the statutory notice serves a distinct non-monetary purpose.
- Consultation before redundancy is implied by Section 40(1)(a) and (b) of the Employment Act and required by Article 47 of the Constitution and the Fair Administrative Action Act, even for non-unionized employees.
- A discharge voucher or full and final settlement cannot absolve an employer from mandatory statutory obligations in a redundancy.
- Compensation for unfair redundancy and general damages for discrimination are distinct heads of damages; awarding both is not double compensation.
Court orders
#- 1.The appeal is dismissed
- 2.The notice of cross-appeal is dismissed
- 3.Each party shall bear its own costs
- 4.The trial court's findings are affirmed
- On appeal from
- Employment and Labour Relations Court at Nakuru
- ELRC Petition No. E009 of 2019
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction (Employment and Labour Relations Court Act/Constitution Article 164)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Flamingo Horticulture (K) Ltd v Njoroge", Case Analysis (2026). Civil Appeal E072 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1791/eng@2026-09-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.