Gerrishom Mukhutsi Obayo v Dsv Air and Sea Limited [2018] KEELRC 1292 (KLR)
The bottom line
#A Kenyan court ruled that a redundancy without a one-month advance notice of intent to the employee and Labour Officer is unfair, even if termination notice was given.
What this practically means
#Executive summary
#Key legal issues
#Compliance with Section 40(1)(b) redundancy notification
The respondent failed to notify the claimant of the intention to carry out the redundancy at least one month in advance; it only issued a termination notice, rendering the redundancy unprocedural and unfair.
The court distinguished notification of intention under Section 40(1)(a)/(b) from the termination notice under Section 40(1)(f). The one-month notification period allows the recipient to verify preconditions, permits consultation and negotiation, and enables the Labour Officer to supervise the process. The claimant received only one letter, dated 4th September 2017, terminating his services, with no prior notification of the intended redundancy. The sequence and simultaneity of notices matter; the respondent's contrary argument was a misapprehension of the statutory requirements.
Selection criteria under Section 40(1)(c)
The respondent failed to satisfactorily demonstrate that the selection of the claimant was rational.
The respondent's witness did not state the losses or profits of each department to prove the Airfreight Department's losses. The notice to the Labour Officer listed a General Manager and an Accounts Assistant from a different department as affected, yet Section 40(1)(c) requires selection criteria to be applied to the same class of employees. No reason was given for choosing the claimant specifically, so the criteria were neither objective nor transparent.
Discrimination claim
Rejected; failure to prove compliance with selection criteria does not establish discrimination.
The claimant sought a declaration that he was discriminated against. The court found the evidence showed only that the respondent had not proved compliance with the selection criteria. That finding falls short of proving discriminatory treatment, so the declaration and damages for discrimination were refused.
Remedy for defective notification
The claimant was entitled to both one month's notification of intended redundancy and one month's termination notice; having received only one, he was awarded the equivalent of the other, one month's salary of Kshs.300,000.
The court rephrased the claimant's prayer for salary in lieu of notice, holding he was entitled to two separate notices under Section 40(1): notification of intended redundancy of at least one month, and a termination notice of one month. Having received only one of the two, the award of the other equivalent, Kshs.300,000, was made. Compensation under Section 49(1)(c) and discrimination damages were declined.
Legal principles established
#- For a valid redundancy, both the Labour Officer and the employee (or union) must be notified at least one month before the redundancy takes place; the one-month notice period in Section 40(1)(a) applies equally to non-unionised employees under Section 40(1)(b).
- Notification of intention to declare redundancy under Section 40(1)(a) and (b) is distinct from the notice of termination under Section 40(1)(f); issuing only a termination notice does not satisfy the notification requirement.
- Redundancy selection criteria under Section 40(1)(c) must be assessed among employees of the same class; a General Manager and an Accounts Assistant in a different department are not the same class.
Court orders
#- 1.Judgment entered for the claimant against the respondent for Kshs.300,000
- 2.Costs of the suit to the claimant
- 3.The decretal sum to attract interest at court rates from the date of judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act (Employment and Labour Relations Court Act); specific provision not stated in the judgment
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.
- Victonell Academy Ltd v Mwangi (Employment and Labour Relations Appeal E023 of 2023) [2025] KEELRC 1847 (KLR)[2025] KEELRC 1847 (KLR)25 Jun 2025
Cite this brief
#Cite this brief
Caselaw, "Gerrishom Mukhutsi Obayo v Dsv Air and Sea Limited [2018] KEELRC 1292 (KLR)", Case Analysis (2018). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1292/eng@2018-07-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.