Mohan v CCI Kenya Limited (Cause E588 of 2023) [2024] KEELRC 2347 (KLR)
The bottom line
#Kenya's Employment Court ruled a redundancy unfair because the employer skipped proper notice, consultation and proof, awarding the employee three months' salary.
What this practically means
#Executive summary
#Key legal issues
#Substantive justification for the redundancy
The Respondent failed to demonstrate a valid and fair reason for the redundancy
The Memorandum of response made no reference to the circumstances triggering the redundancy. RWI's statement was reticent on when the decision was made, the reasons and the number of employees affected. The Respondent did not file its new organization structure, so the Court could not verify that restructuring necessitated the termination. The employer bore a heavy burden of justification under Sections 40 and 45 which it did not discharge.
Adequacy of the redundancy notice
The notice dated 7th June 2023 with effect from 30th June 2023 was ineffectual as it fell short of a calendar month, and was further undermined by shortening the last working day to 19th June 2023
Section 40(1)(a) and (b) require not less than a month's notice to the employee and the Local Labour Officer. Applying Section 3(1) of the Interpretation and General Provisions Act, a month is a calendar month, so the requisite days were not met. The letter of 15th June 2023 bringing the termination forward to 19th June aggravated the defect. No copy of the notice to the Local Labour Officer was filed.
Notice to the Local Labour Officer
The Respondent failed to prove compliance with Section 40(1)(b) as regards notice to the Local Labour Officer
RWI alleged a notice was sent but admitted it was not filed or served as confirmatory evidence. The Respondent availed no evidence of having given a copy of the notice to the Local Labour Officer, so this mandatory condition was unproved.
Pre-redundancy consultations
No meaningful consultations were proved
The single email of 5th May 2023 forwarding an organizational structure, of unclear content, was insufficient to prove consultations. Meaningful consultation is required per the Court of Appeal in Barclays Bank of Kenya, drawing on ILO Convention No. 158 and Article 41 of the Constitution, and must be real and not cosmetic.
Whether two notices are required under Section 40(1)
Only one mandatory notice is required; a second notice is permissible but not legally required
Counsel for the Claimant, relying on Ndolo J in Charles Nyangi Nyamohanga v Action Aid International, urged that two notices were required. The Court rejected this, holding that the provisions of Section 40(1) provide for only one mandatory notice, as the Court of Appeal has held.
Legal principles established
#- Section 40(1) of the Employment Act is mandatory and sets seven conditions for a lawful redundancy
- A termination must be both substantively justifiable and procedurally fair to pass the fairness test under Section 45
- There is a heavy burden of proof on the employer to justify termination and to give the reasons for and extent of the redundancy
- Meaningful pre-redundancy consultations are required as a matter of constitutional and international best practice
- Only one notice is mandatory under Section 40(1); a second notice is not a legal requirement
- Punitive or exemplary damages are awardable only in two circumstances plus where authorized by statute
Court orders
#- 1.Declaration that termination of employment on account of redundancy was unfair
- 2.Equivalent of 3 months gross salary, Kshs.3,831,300.00
- 3.Certificate of service unless already issued
- 4.Costs of the suit to the Claimant
- 5.Interest on the compensation award at Court rates till payment in full
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (Sections 40, 45, 49 and 51) over a claim of unfair termination of employment
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.
- Kiamokama Tea Factory Company Ltd v Bikundo (Appeal E061 of 2023) [2025] KEELRC 1757 (KLR)[2025] KEELRC 1757 (KLR)18 Jun 2025
Cite this brief
#Cite this brief
Caselaw, "Mohan v CCI Kenya Limited (Cause E588 of 2023) [2024] KEELRC 2347 (KLR)", Case Analysis (2024). Cause No E588 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2347/eng@2024-09-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.