United Millers Limited v Okusimba (Appeal E076 of 2024) [2025] KEELRC 1860 (KLR)
The bottom line
#An employer who merely scales down operations—rather than fully closing—must still follow the redundancy selection criteria and consult affected employees.
What this practically means
#Executive summary
#Key legal issues
#Whether closure of business exempts an employer from establishing selection criteria under Section 40[1][c] of the Employment Act
The exemption did not apply because the evidence did not establish closure of the Nakuru plant; only scaling down and reduced operations were shown
The Memo of 3rd August 2021 announced scaling down of operations for 60 days with a skeleton manpower retained and assurance of possible resumption. The second Memo of 6th October 2021 referred to 'reduced operations' and 'restructuring', not closure. Skeleton manpower was not shown to have been removed. Section 40para 1[c] therefore ought to have been applied in selecting employees for redundancy.
Whether the lack of consultation rendered the redundancy procedurally unfair
Yes; the Appellant made unilateral decisions without consulting Employees, contrary to the redundancy consultation principle
Employees were sent home under a 60-day scaling-down exercise, then issued redundancy notices without consultation, and it was unknown how the Respondent was selected while the refinery remained operational. The absence of consultation caused restiveness and industrial action. The Court of Appeal principle in the German School Society case underscored the duty to consult.
Whether the Trial Court misapprehended facts or misapplied the law
No; the Trial Court correctly evaluated the facts and applied Section 40para 1 of the Employment Act
The Trial Court found at paragraph 8 of its Judgment that the refinery was not closed down and that some machines were probably left running, retaining skeleton manpower. The Appellant failed to demonstrate any misapprehension of evidence or misapplication of law justifying appellate interference with the award of 6 months' salary compensation.
Legal principles established
#- Selection criteria under Section 40para 1[c] of the Employment Act apply where a workplace is scaled down or restructured but not fully closed
- Redundancy is a process requiring consultation with Employees at every stage, not unilateral decisions communicated by notices and memos
Court orders
#- 1.The Appeal is declined.
- 2.Costs of the Appeal to the Respondent.
- On appeal from
- Trial Court (magistrates' court, not named in judgment)
- not stated
- Jurisdiction invoked
- First appellate jurisdiction of the Employment and Labour Relations Court over the Trial Court judgment (not expressly cited in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "United Millers Limited v Okusimba (Appeal E076 of 2024) [2025] KEELRC 1860 (KLR)", Case Analysis (2025). Memorandum of Appeal dated 19th November 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1860/eng@2025-06-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.