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ELRCPartially AllowedCause No E900 of 2021· [2025] KEELRC 249 (KLR)

Atandi v African Medical and Research Foundation (Amref) Flying Doctors (Cause E900 of 2021) [2025] KEELRC 249 (KLR)

Employment and Labour Relations Court
31 January 2025
6,655 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Claimant, employed in 2008 and last serving as Operations Assistant (Grade B1) with the Respondent, an aeromedical service provider, challenged his termination on 9th July 2019 on grounds of redundancy. He alleged the redundancy was a disguised termination motivated by religious discrimination, as his employer would not accommodate his Seventh Day Adventist refusal to work Saturdays, and that Section 40 of the Employment Act was not complied with. He sought a declaration of unlawfulness, reinstatement or re-engagement, or alternatively terminal dues of USD 123,664 including notice pay, leave pay, remainder of contract, severance, compensatory damages and compensation for religious discrimination. The Respondent maintained the redundancy followed a genuine reorganization abolishing his position, that he lacked aviation qualifications for the new structure, and that it had accommodated him by removing him from weekend rosters. The Court framed three issues: fairness and lawfulness of the redundancy, discrimination, and entitlement to reliefs. It found the redundancy substantively justified - the position was abolished and the Claimant lacked the qualifications (no KCAA certification) for the new Flight Operations Officer role. However, the notice issued was final rather than a notice of intention to declare redundancy, and no pre-redundancy consultations were held as required by Section 40(1)(b) and ILO Convention No. 158, rendering the termination procedurally unfair. The discrimination claim failed, the Respondent having accommodated the Claimant's Sabbath observance. The Court awarded nominal compensatory damages of USD 1,856 (two months' gross salary) with interest, declined notice pay, severance, remainder-of-contract and discrimination damages as already paid or unfounded, and awarded the Claimant the costs of the suit.

Key legal issues

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01

Substantive justification of the redundancy

Holding

The redundancy was substantively justified: the Claimant's position was abolished in a reorganization and he lacked the qualifications (KCSE only, no KCAA certification) for the new Flight Operations Officer role

Reasoning

The Respondent exhibited two organograms showing the Claimant's position was abolished and replaced. The job description required a Diploma in Flight Operations/Dispatch and a KCAA licence. The Claimant admitted in cross-examination that his highest qualification was KCSE and he held no KCAA certification, confirming he could not take up the new role.

p. 8
02

Procedural fairness of the redundancy - notice and consultation

Holding

The Respondent failed to issue a notice of intention to declare redundancy and to hold pre-redundancy consultations, rendering the termination procedurally unfair under Section 40(1)

Reasoning

The letter of 9th July 2019 was a final notice declaring redundancy, not an intention to declare one. The meetings of 3rd August and 11th October 2018 concerned the Claimant's Saturday attendance, not an intended redundancy, and thus did not constitute consultations under Article 13, Convention No. 158 - Recommendation No. 166 of the ILO Convention.

p. 10
03

Alleged discrimination on the ground of religion

Holding

The discrimination claim failed; the Respondent accommodated the Claimant by removing him from weekend rostering, and the redundancy came almost a year later for valid operational reasons

Reasoning

After the Claimant insisted he would not work Saturdays, the Respondent removed him from the weekend roster and engaged additional staff to cover, taking no disciplinary action. Termination followed in July 2019 on account of a justified redundancy, undercutting any inference of religious discrimination.

p. 12
04

Quantum of relief for procedurally unfair redundancy

Holding

Nominal compensatory damages of two months' gross salary awarded because the reason for redundancy was valid

Reasoning

Since the substantive reason was valid and only the procedure was defective, the award was nominal: two months' gross salary (USD 1,856). Notice pay and severance had already been paid; the remainder-of-contract and discrimination-based claims failed.

p. 13

Legal principles established

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  • The notice contemplated under Section 40(1)(a) and (b) of the Employment Act is a notice of intention to declare a redundancy, issued before the redundancy takes effect, and must open room for consultations
  • A final notice declaring an employee redundant, issued after the decision has been made, does not comply with Section 40(1) and leaves no room for consultation
  • An employee must first establish a prima facie case of discrimination before the burden shifts to the employer under Section 5(7) of the Employment Act

Court orders

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  1. 1.The Respondent to pay the Claimant compensatory damages in the sum of USD 1,856, being equivalent to two (2) months of his gross salary
  2. 2.Interest at court rates on that award from the date of Judgment until payment in full
  3. 3.The Claimant to have the costs of the suit

Authorities

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Legislation

  • Employment ActSection 40(1)
  • Employment ActSection 45(2)(a) & (b)(ii)
  • Employment ActSection 5(7)
  • Employment ActSection 47(5)
  • Employment ActSection 2
  • Constitution of KenyaArticles 22, 27, 41
  • ILO Convention No. 158 - Recommendation No. 166 (Termination of Employment Convention, 1982)Article 13
  • ILO Convention No. 158Convention No. 158 (as referenced via Memorandum of Claim)
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Constitution of KenyaArticles 159(2)(d), 48

Cases cited (8)

  • De Bank Haycocks vs ADP RPO UL Ltd
  • SWM vs Hardware Trading Store Limited & another
    [2021] eKLR
  • GMV vs Bank of Africa Kenya Limited
    [2013] eKLR
  • Jacqueline Okeyo Manani & 5 others vs Attorney General & another
    [2018] eKLR
  • Kenya Airways vs Aviation & Allied Workers Union Kenya & 3 others
    (2014) eKLR
  • Onesmus Kinyua Magoiva vs Prudential Life Assurance Kenya
    (2022) eKLR
  • Galgalo Jarso Jillo vs Agricultural Corporation
    [2021] eKLR
  • The German School Society & another vs Ohany & another
    [2023] KECA 894 (KLR)
Jurisdiction invoked
Original employment and labour relations jurisdiction; reliefs sought under the Employment Act and Articles 27 and 41 of the Constitution

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Atandi v African Medical and Research Foundation (Amref) Flying Doctors (Cause E900 of 2021) [2025] KEELRC 249 (KLR)", Case Analysis (2025). Cause No E900 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/249/eng@2025-01-31

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.