Komu v Sana Industries Limited (Appeal E107 of 2023) [2025] KEELRC 75 (KLR)

Redundancy under the Employment Act requires the employer's initiative and notices under section 40, none of which were produced. The appellant pleaded redundancy but never cross-examined the respondent's witness on the alleged list of redundant employees, leaving it an uncorroborated allegation. The burden under sections 107-109 of the Evidence Act and section 47(5) of the Employment Act was never discharged, so it never shifted to the respondent.

Desertion is gross misconduct under section 44(4)(a) of the Employment Act, but the employer still had to comply with section 41(2) before summary dismissal. The respondent never contacted the appellant after the three-day suspension, stopped his salary, and issued no termination notice. Following Owundu v Digital Sanitation Services Limited, an employer faced with abscondment must issue notice to the employee to render an account before terminating. Reason was valid; procedure was unfair.

The appellant was entitled to one month's notice pay under section 35(1)(c) for the procedural unfairness. Leave was allowed only for the last 18 months per section 28(4), applying the reasoning in Peter Kariuki Gachiri. Severance depends on proven redundancy, which failed. Compensation for unlawful termination was refused because the reason for termination was valid misconduct, and notice pay sufficed for the procedural defect. A certificate of service is a statutory right under section 51.