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ELRCPartially AllowedELRCCA/E189/2024 (Memorandum of Appeal dated 11th April 2023, filed 5th July 2024)· [2025] KEELRC 317 (KLR)

Juma Hardware Limited v Tungani & 2 others (Appeal E189 of 2024) [2025] KEELRC 317 (KLR)

Employment and Labour Relations Court
5 February 2025
5,305 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled that employers doing proper redundancy don't owe employees 12 months' compensation if they followed the law and consulted the union.

What this practically means

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Executive summary

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Juma Hardware Limited appealed against the judgment of the Chief Magistrate's Employment and Labour Relations Court at Nairobi (Hon. S. A. Opande) delivered on 9th March 2023 in MCMELC Cause No. E438 of 2021, which had found that the termination of three employees by redundancy was unlawful and unfair and awarded each of them 12 months' salary as compensation, with costs and interest. The respondents filed a preliminary objection contending the appeal was filed out of time without leave, that the appellant lacked locus standi having merged into ASL Limited, and that the certificate of delay was irregular. The court directed that the objection be canvassed with the main appeal. The court held the objection was without merit: leave to appeal out of time had been granted by Nzioki Wa Makau J on 12th July 2023, deeming the memorandum of appeal filed; a certificate of delay is a court record whose credibility cannot be attacked by preliminary objection, which must raise a pure point of law per Mukisa Biscuit. On the merits, applying Selle v Associated Motor Boat Co., the court found the appellant complied with section 40 of the Employment Act: it notified the union, the Ministry of Labour and employees, consulted the union, paid in lieu of notice, and a ministry conciliator found the process compliant. The trial court erred by requiring that the employees be satisfied of or convinced by the redundancy reasons when they were union-represented throughout. However, the terminal dues tabulated with the union remained payable. The appeal was allowed: the trial judgment was set aside and substituted with an award of terminal dues per the tabulations with interest, costs of the suit, and each party to bear own costs in the appeal.

Key legal issues

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01

Whether the appeal was properly on record given the delay in filing the memorandum of appeal

Holding

The appeal was properly on record because leave to file out of time had been granted by Nzioki Wa Makau J on 12th July 2023 and the memorandum of appeal dated 11th April 2023 was deemed duly filed; the preliminary objection was a misconceived vehicle to challenge a certificate of delay

Reasoning

The court noted the ruling of 12th July 2023 granted leave and deemed the memorandum of appeal filed. Once leave is granted, the appeal cannot be deemed improperly filed. A certificate of delay is a court record and a party cannot litigate its credibility through a preliminary objection, which must be a pure point of law per Mukisa Biscuit. The objection was dismissed with costs in the cause.

p. 5
02

Whether the trial court erred in holding the redundancy unlawful and unfair

Holding

Yes. The appellant complied with section 40 of the Employment Act; the trial court erred by requiring that employees be convinced of the reasons for redundancy despite union representation and a conciliator's finding that the process complied with the law

Reasoning

The court re-evaluated the evidence per Selle v Associated Motor Boat Co. The appellant notified the union, the Ministry of Labour and employees, consulted the union (reducing affected employees from 60 to 26), paid in lieu of notice, and the conciliator found the process compliant. Requiring financial accounts or subjective satisfaction of employees exceeded sections 40 and 45(2), particularly where the union represented the claimants and never challenged the conciliator's decision in court.

p. 9
03

Whether the respondents were entitled to the reliefs granted by the trial court

Holding

Partially. The 12-month compensation for unfair termination was overturned, but the terminal dues tabulated jointly with the union remained payable

Reasoning

The tabulations of terminal dues were produced and there was no evidence they had not been paid; RW confirmed the same. Since these amounts were in the claim and tabulated in conjunction with the union, they ought to be awarded as tabulated with interest from the date of judgment. The demolition issue could not be raised as there was no cross-appeal.

p. 9

Legal principles established

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  • An employer declaring redundancy need only present valid reasons and comply with sections 40 and 45(2) of the Employment Act; it is not required to satisfy or convince the affected employees of the reasons where they were represented by a union throughout the process
  • Redundancy decisions must be respected where the employer adheres to statutory provisions and acts in good faith; courts should not delve into operational decisions absent evidence of malice or unfairness
  • The credibility of a certificate of delay cannot be challenged by way of preliminary objection since it is a court record

Court orders

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  1. 1.The notice of preliminary objection was held to be without merit and dismissed with costs in the cause
  2. 2.The judgment of the lower court delivered on 9th March 2023 is set aside
  3. 3.Judgment entered for the claimants for payment of terminal dues as per the tabulations before the trial court: Mirima Tungani gross pay of Kshs. 60,091; Eunice Khayesi gross pay of Kshs. 88,572; Paul Chuma gross pay of Kshs. 78,069, each with interest at court rates from the date of the lower court judgment, payable jointly and severally by the appellant and the 2nd respondent
  4. 4.Costs of the suit awarded to the claimants
  5. 5.Amounts to be tabulated and decree drawn for payment out of the decretal sum held by the advocates in joint account within 30 days of judgment
  6. 6.Each party to bear own costs in the appeal

Authorities

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Legislation

  • Employment ActSection 40
  • Employment ActSection 45(2)
  • Court of Appeal RulesRule 82

Cases cited (8)

  • Selle v Associated Motor Boat Co.
    [1968] EA 123
  • Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd
    [1969] EA 696
  • Peter Mathenge t/a Imperial Water Services - v - Juma
    (Employment and Labour Relations Appeal E210 of 2023) [2024] eKLR
  • Nicholas Kiptoo Korir Arap Salat v IEBC & 7 others
    [2014] eKLR
  • Leo Sila Mutiso v Rose Hellen Wangari Mwangi
    [1999] 2 EA 231
  • Aga Khan University Hospital Nairobi v Kenya Union of Domestic Hotels Educational Institutions and Hospital Workers (KUDHEIHA)
  • Kenya Airways Limited v Aviation & Allied Workers Union Kenya & 3 others
    [2014] eKLR
  • Thomas De La Rue (K) Ltd v David Opondo Omutelema
    [2013] eKLR
On appeal from
Chief Magistrate Employment and Labour Relations Court at Nairobi
MCMELC Cause No. E438 of 2021
Jurisdiction invoked
First appellate jurisdiction over the Chief Magistrate's Employment and Labour Relations Court appeal (Employment and Labour Relations Court Act); appeal deemed properly on record pursuant to leave granted by Nzioki Wa Makau J in ELRCMISC/E081/2023

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, "Juma Hardware Limited v Tungani & 2 others (Appeal E189 of 2024) [2025] KEELRC 317 (KLR)", Case Analysis (2025). ELRCCA/E189/2024 (Memorandum of Appeal dated 11th April 2023, filed 5th July 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/317/eng@2025-02-05

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