Donald v Tofada Security Services Limited (Appeal E129 of 2023) [2025] KEELRC 1346 (KLR)
The bottom line
#A Kenyan court ruled a guard's redundancy was valid in reason but unfair in procedure because the employer ignored mandatory redundancy steps under the Employment Act.
What this practically means
#Executive summary
#Key legal issues
#Whether termination on account of redundancy was fair
Reasons valid but procedure unfair; section 40 not complied with
The employer issued a redundancy letter dated 12 May 2021 citing reduced revenue after third-party clients terminated contracts. The court distinguished Walwanda v Radar Security, holding that by issuing a redundancy letter the employer invoked section 40, whose mandatory conditions were admittedly not followed, rendering the termination procedurally unfair though based on valid reasons.
Whether reliefs sought should be awarded
Partially awarded: notice pay, house allowance, underpayments, service pay; overtime, public holidays and leave refused
The court awarded statutory entitlements under section 40(1) including notice pay and severance at 15 days per completed year (4 years). House allowance was admitted unpaid under section 31, and underpayment against the 2018 minimum wage of Kshs 15,141.95 was unshaken at trial. Overtime, public holidays and leave claims failed for want of strict proof.
Legal principles established
#- Once an employer issues a letter declaring redundancy, it brings itself within section 40 of the Employment Act and must comply with its mandatory procedural conditions, failing which the termination is procedurally unfair.
- Overtime and extra hours worked beyond the normal must be strictly proved.
Court orders
#- 1.Judgment of H.M. Nganga dated 8 June 2023 set aside and substituted
- 2.Declaration that termination on basis of redundancy was based on valid reasons but procedurally unfair
- 3.Notice pay of 1 month salary of Kshs. 17,413
- 4.House allowance of Kshs 72,672
- 5.Underpayments of Kshs. 161,342.40
- 6.Service pay of Kshs 34,826
- 7.Total sum of Kshs 286,253.40 payable with interest at court rate from date of filing suit until payment in full
- 8.Costs of the suit to the claimant
- 9.Costs of the appeal awarded to the appellant
- On appeal from
- Chief Magistrate's Court at Milimani Commercial Courts
- Milimani CMEL Cause E091 of 2022
- Jurisdiction invoked
- First appellate jurisdiction over the Chief Magistrate's Court employment cause
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Donald v Tofada Security Services Limited (Appeal E129 of 2023) [2025] KEELRC 1346 (KLR)", Case Analysis (2025). Employment Appeal from Milimani CMEL Cause E091 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1346/eng@2025-05-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.