Juma v Ayuda Ninos De Africa Kenya (Appeal E027 of 2023) [2025] KEELRC 74 (KLR)
The bottom line
#A Kenyan court ruled that ending an employee's job because donor funds ran out counts as redundancy, requiring strict legal procedure that the employer skipped.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the trial court erred in finding that the appellant's termination was fair in the circumstances
- 2.Whether the termination was pursuant to financial constraint rather than non-performance
- 3.Whether the trial court failed to determine the issue of changing the claimant's contract without consultation
- 4.Whether the notices issued met the threshold of sections 41 and 40 of the Employment Act
Key legal issues
#Procedural fairness of termination
The two notices did not meet the threshold of sections 41 and 40; mandatory procedures were not followed
The 4 July 2022 letter gave 26 days' notice citing non-attendance at duties, invoking section 41, while the 7 July 2022 letter ended employment immediately citing unavailability of funds, invoking section 40. No notice to the labour officer was demonstrated, no list of affected employees was filed, and the respondent could not justify why the appellant alone was affected.
Redundancy requirements
Termination on account of redundancy requires notice to the employee and the labour officer, and cannot affect a single employee
Section 40 requires notice of reasons and extent of redundancy to the labour officer. Ali Omar's testimony that the labour office was informed was not supported by the letter, which was not addressed or copied to the labour office. The affected-employee list was never filed. Redundancy affecting a single employee and targeting a specific employee is a sham.
Unilateral variation of contract
The offer to convert full-time employment to part-time required written approval under section 10(5)
The respondent proposed converting the contract to part-time at Ksh.12,000, but with no funds the offer was illusory and was never approved by the appellant in writing as required by section 10(5), as confirmed in Muthui v Kenya Rural Roads Authority.
First appeal mandate
The court on first appeal re-evaluates and re-analyses the evidence while bearing in mind the trial court heard the evidence
The court restated the standard duty on a first appeal to re-evaluate, reassess and re-analyse evidence and draw its own conclusions, subject to the trial court's advantage of taking evidence.
Legal principles established
#- Termination for unavailability of funds is redundancy and must comply with section 40 notice requirements including notification of the labour officer; redundancy cannot affect a single employee
- Change of employment terms requires written approval of the employee under section 10(5) of the Employment Act
- Failure to adhere to mandatory sections 40 and 41 renders termination unlawful and unfair under section 45
Court orders
#- 1.Judgment in Malindi MELRC No.25 of 2022 set aside
- 2.Declaration that employment of the appellant was terminated unfairly
- 3.Compensation awarded at Ksh.135,000 (3 months' gross salary)
- 4.Costs of the proceedings before the lower court and for the appeal awarded to the appellant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Malindi Magistrates' Court (MCELRC)
- No.25 of 2023
- Jurisdiction invoked
- First appeal from the judgment of the Magistrates' Court (MCELRC No.25 of 2023)
Relief refused
#Unexpired term contract claim (Ksh.405,000) beyond 3 months' compensation
Having been issued with notice and payment thereof, the appellant was free to secure new employment; 3 months' gross salary was found appropriate
12 months' compensation as a separate head (Ksh.540,000)
Taken into account in the award on the unexpired term
Costs
Costs of the proceedings before the lower court and for the appeal awarded to the appellant
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Accordingly, the judgment in Malindi MELRC No.25 of 2022 is hereby set aside the following orders issued;
a. Employment of the appellant terminated unfairly;
b. Compensation awarded at Ksh.135,000;
c. Costs of the proceedings before the lower court and for the appeal.
The notices issued to the appellant do not meet the threshold of sections 41 and 40 of the Employment Act.
…A redundancy, restructuring or reorganization commenced with the sole purpose of laying ofi specific employees is a sham.
Issues in the judgment
#Lower court case number stated inconsistently: 'Malindi MCELRC No.25 of 2023' in the opening paragraph versus 'Malindi MELRC No.25 of 2022' in the final orders
Ground 4 of the appeal describes the claimant as 'the respondent was unfairly terminated', apparently a drafting error
Trial costs inconsistently recorded: paragraph 4 states each party was to bear its own costs, yet the appeal awards costs of the lower court proceedings
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.
- Karimi v Tradco Services Limited (Cause E096 of 2023) [2025] KEELRC 980 (KLR)[2025] KEELRC 980 (KLR)27 Mar 2025applied
Cite this brief
#Cite this brief
Caselaw, "Juma v Ayuda Ninos De Africa Kenya (Appeal E027 of 2023) [2025] KEELRC 74 (KLR)", Case Analysis (2025). Malindi MCELRC Appeal (from Malindi MCELRC No.25 of 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/74/eng@2025-01-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.