Gachuhi v Track and Trace Limited (Employment and Labour Relations Cause 415 of 2021) [2025] KEELRC 1372 (KLR)
The bottom line
#An employer won on the reason for redundancy but lost because it skipped the mandatory notice steps under Kenyan employment law.
What this practically means
#Executive summary
#Key legal issues
#Whether termination on account of redundancy was procedurally fair
Not procedurally fair - no one month's notice of the intended redundancy was given; the notice to the labour office issued after termination
The only communication about restructuring was the email of 3rd December 2020, with termination taking effect on 4th December 2020 and the letter issued on 17th December 2020. Section 40(1)(a)/(b) required notice of not less than one month to the employee and the labour officer. The notice to the labour office was dated 19th December 2020, after termination. There was also no disclosure of selection criteria or consultation as required by the Kenya Airways principles.
Whether the redundancy was substantively justified
Justified - the respondent proved on a balance of probability that the department and the claimant's performance were off-track and the business decision was genuine
The claimant's own self-appraisals of 6th November 2020 and 1st December 2020 showed team and individual performance off-track/red. RW testified the company suffered COVID-19 losses and scrapped off loss-making units. Although the 92% self-rating was not countersigned, the court accepted that the redundancy reason was valid under section 45(2)(b)(ii) as based on operational requirements.
Whether the claimant was entitled to commission of Kshs. 1,329,000 for the Kenya Power tender
Declined for lack of evidence after the claimant withdrew the notification of award of tender
Section 107 of the Evidence Act places the burden on the person asserting a fact. The claimant filed a supplementary list containing the notification of award of tender but withdrew it at the hearing. Without that document she had no proof that the tender was issued or that commission remained unpaid. The employer denied the claim and pointed to payslips showing commissions were paid when due.
Whether the claimant was entitled to balance of terminal dues
Allowed in part - Kshs. 166,204 outstanding after acknowledged payment of Kshs. 400,000 and statutory deductions of Kshs. 233,379
It was not disputed that Kshs. 400,000 was paid post-filing. Statutory deductions of PAYE, NHIF and NSSF totalled Kshs. 233,379. The court computed the outstanding amount as Kshs. 166,204 and allowed it with interest at court rates from the date of filing suit.
Legal principles established
#- For a redundancy termination to be lawful it must be both substantively justified and procedurally fair under section 40 of the Employment Act
- Notice to the labour officer of an intended redundancy must issue not less than one month before the date of termination; notice given after termination does not comply with section 40(1)
- The employer bears the burden of proving the reason for termination under section 43, and fairness requires both substantive and procedural fairness under sections 45 and 41
Court orders
#- 1.Compensation for lack of procedural fairness of notice payment of Kshs. 130,000 payable with interest from date of judgment
- 2.Outstanding terminal dues of Kshs. 166,204 payable with interest at court rates from date of filing suit
- 3.Costs of the suit to the claimant
- 4.Stay of execution of 30 days granted
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act and Article 41 of the Constitution (fair labour practices)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gachuhi v Track and Trace Limited (Employment and Labour Relations Cause 415 of 2021) [2025] KEELRC 1372 (KLR)", Case Analysis (2025). Not stated in the judgment text provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1372/eng@2025-05-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.