Macharia v Registered Trustees of the Sisters of Mercy (Kenya) Mater Misericordiae Hospital (Cause 650 of 2020) [2025] KEELRC 1454 (KLR)

Sister Mary Gitau's evidence showed the position was declared redundant because the Claimant was found rude and refused to take responsibility - a fault-based ground inconsistent with the statutory definition of redundancy. The alleged duplication of the Claimant's role with the CEO's was inherent in the contract drafted by the Respondent itself since 2018, and other holders of the position had preceded him without redundancy. The Court concluded the redundancy was a colourable exercise arising from a failed disciplinary process.

The Claimant went on leave unaware of any redundancy plan and was presented with a fait accompli decision made by the Trustees in his absence. There was no record of consultations on redundancy despite his senior rank as principal assistant to the CEO. No redundancy benefits were paid before termination. The Court applied the German School Society and Mugford authorities on genuine consultation and found the exercise fell far short of Section 40.

Although the Court found the Claimant went overboard in copying allegations of misgovernance and immorality to Sisters in Ireland with no supervisory role, the dispute revolved around Section 40 of the Employment Act. The Respondent's own case was that termination was on account of redundancy, not disciplinary issues. The e-mail therefore had no bearing on the reason justifying termination and the Cause did not stand or fall on it.

The Respondent had offered but never paid notice pay and severance. The Claimant worked 2 ½ years and did not contribute to the termination; he had mitigated loss through temporary teaching engagements and had already been awarded severance, notice and leave, so compensation was limited to the equivalent of 5 months' salary. Reinstatement was not practicable after over 4 years, and gratuity was not separately justified.