Kariri v GE East Africa Services Limited (Cause 139 of 2019) [2023] KEELRC 2719 (KLR)
The bottom line
#A Kenyan court ruled a redundancy unfair because the employer skipped key legal steps, but awarded only four months' salary.
What this practically means
#Executive summary
#Key legal issues
#Whether the redundancy was substantively and procedurally fair under Sections 40 and 45 of the Employment Act
The termination was unfair: the notice of 31st August 2018 did not set out the reasons for and extent of the redundancy, the notice to the Labour Officer was late, there was no selection criteria, and consultations were not meaningful
The court applied Section 40(1) requirements per Cargill Kenya and Thomas De La Rue, holding only one notice is required and it must state reasons and extent. The 31st August letter communicated a decision, not an intention. The Labour Officer was notified outside the one-month window. Others were affected yet no criteria under Section 40(1)(c) were applied, and post-notice engagement was grievance handling, not consultation.
Whether the Claimant was discriminated in salary and access to alternative employment
No discrimination established; the Claimant failed to discharge the burden of proof
The court applied the principle that mere inequality of treatment is not discrimination absent arbitrariness or prohibited grounds. The Claimant adduced no evidence of comparable qualifications and experience with his predecessor, no proof of a custom of redeployment, and did not apply for open positions. Section 5(7) does not automatically shift the burden of proof to the employer.
What reliefs flow from the finding of unfair termination
A declaration issued and compensation of 4 months' gross salary under Section 49(1)(c); general damages and bonus refused
Considering Section 49(4) factors — the Claimant's wish to remain, his appeal, about 4 years and 5 months of service, absence of misconduct, and severance, notice and leave already paid of Kshs.5,617,654.95 — the court found the equivalent of 4 months' gross salary fair.
Legal principles established
#- Section 40(1) of the Employment Act requires one notice setting out the reasons for and extent of the intended redundancy; a notice communicating a decision rather than an intention does not satisfy the section
- An employer must set out genuine reasons for redundancy; vague terms such as re-alignment or restructuring do not suffice, and management prerogative to restructure is subject to Section 40
- A selection criteria under Section 40(1)(c) is required even where an employer contends only one person was affected, if in fact others were affected
- Consultations in a redundancy must be meaningful and not cosmetic, aimed at exploring termination and mitigating its impact
- Mere differential treatment does not amount to discrimination; the claimant must show the differentiation is unreasonable, arbitrary or on prohibited grounds
Court orders
#- 1.Declaration that termination of the Claimant's employment on account of redundancy was unfair
- 2.Equivalent of 4 months' gross salary as compensation
- 3.Costs of this suit to the Claimant
- 4.Interest at court rates from the date of judgment till payment in full
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (first-instance employment claim)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kariri v GE East Africa Services Limited (Cause 139 of 2019) [2023] KEELRC 2719 (KLR)", Case Analysis (2023). Cause No 139 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2719/eng@2023-11-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.