Mwikali v Flame Tree Africa Limited (Cause E6-7 of 2021) [2025] KEELRC 1809 (KLR)
The bottom line
#A Kenyan court ruled that giving a worker redundancy notice and termination on the same day is unlawful, awarding her nearly Kshs 1 million.
What this practically means
#Executive summary
#Key legal issues
#Whether the redundancy of the Claimant complied with Section 40 of the Employment Act
The redundancy was procedurally unfair: the Claimant was given the notice of intended redundancy and the termination notice on the same day (18th March 2021) and asked to hand over company property immediately, leaving no genuine one-month notice period or room for consultation.
Section 40 requires at least one month's notice to the employee and the labour officer, allowing consultations. The letters of intended redundancy and termination were both dated 18th March 2021, and the Claimant was told to hand over all company property by close of business that same day. The court found the contents of the letters betrayed that the Respondent never intended to keep her beyond 18th March 2021, denying her consultations and a soft landing.
Whether the termination was substantively justified
The court found the redundancy unfair and unjustified principally for want of due process; DW1 conceded there were no documents showing a restructuring, and the Claimant alone among Accounts Assistants was declared redundant.
The Respondent's witness DW1 testified she had no documents evidencing the alleged restructuring, and that the Claimant was declared redundant due to poor performance among four Accounts Assistants. The court did not rest its finding on substantive justification alone but on the failure of procedure, holding that with no due process the Claimant succeeded under Section 45(2).
Whether the Claimant was entitled to acting allowance as Finance Manager
The claim failed for lack of proof of the alleged verbal acting appointment or performance of the full duties of the role.
The Claimant asserted she was appointed acting Finance Manager orally in March 2020, but called no witness to corroborate this. The Respondent's witnesses, including DW4, denied any verbal appointment for such a senior position and stated the Finance Manager's duties were distributed across the department. The court accepted the Respondent's submission that without evidence of appointment or performance of the full scope of duties with the employer's knowledge and approval, the claim could not stand.
Entitlement to accrued leave days and return of personal effects
The Claimant was awarded 23 days' leave outstanding and an order for return of her personal effects.
The court awarded leave pay computed at 23/30 of monthly salary of Kshs 113,566. On personal effects, DW3 testified he delivered a water bottle and A4 mirror to the Claimant's home, but the court still directed return of the items as pleaded. The other reliefs, including general damages for unfair labour practices and salary for April/May 2021, were not granted.
Legal principles established
#- A redundancy notice that requires an employee to hand over all company property on the very day of notice is not a real one-month notice and denies the employee the consultation window required by Section 40 of the Employment Act.
- Where procedural fairness is absent, termination on account of redundancy is unfair under Section 45(2) of the Employment Act.
Court orders
#- 1.Award of 8 months' salary as compensation for unfair redundancy (8 x Kshs 113,566 = Kshs 908,528)
- 2.Award of 23 days' leave outstanding (23/30 x Kshs 113,566 = Kshs 87,067)
- 3.Total award of Kshs 995,595 less statutory deductions
- 4.Direction to the Respondent to return the Claimant's personal effects and items as pleaded
- 5.Respondent to pay costs of the suit plus interest at court rates with effect from the date of judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Court Act and Article 162(2) of the Constitution (employment and labour relations dispute)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mwikali v Flame Tree Africa Limited (Cause E6-7 of 2021) [2025] KEELRC 1809 (KLR)", Case Analysis (2025). ELRC Cause filed 22nd July 2021 (number not indicated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1809/eng@2025-06-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.