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ELRCPartially AllowedNot stated in the judgment as reproduced· [2025] KEELRC 1982 (KLR)

Nyawanga v Kenya Plantation & Agricultural Workers Union (Employment and Labour Relations Cause E007 of 2024) [2025] KEELRC 1982 (KLR)

Employment and Labour Relations Court
3 July 2025
MOM. Onyango
2,707 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A Kenyan court confirmed employers can make positions redundant for genuine reasons, but skipped the mandatory legal process, so the worker got paid anyway.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent union on 11th November 2013 and transferred to Kitale in 2021 as acting Branch Secretary, was terminated with effect from 31st December 2022 following the closure of the Kitale Area office due to a drastic drop in membership. He claimed the termination was verbal, unexplained and without notice, and sought a declaration of unlawful termination, reinstatement, general damages, terminal benefits, acting allowance for 20 months, compensation for lack of salary increments, costs and interest. The Respondent maintained the closure was for non-performance, that the Claimant failed to grow membership to the 1000 required under its constitution, and that terminal dues were computed but declined by the Claimant. The court framed two issues: whether the redundancy was fair and lawful, and entitlement to remedies. It accepted that failure to grow membership was a valid substantive reason for the closure and hence the redundancy, but found the notice of 1st December 2022 served on 15th December 2022 did not meet the mandatory requirements of section 40 of the Employment Act, applying the Kenya Airways decision that redundancy must be both substantively justified and procedurally fair. The termination was declared un-procedural and unlawful. Severance pay of Kshs. 88,000 for 8 years of service and Kshs. 42,000 in lieu of the section 40 notification and notice were awarded. Reinstatement was declined as the office was closed and no exceptional circumstances were shown, and the acting allowance claim failed for want of proof. Costs of Kshs. 20,000 were assessed against the Respondent.

Key legal issues

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01

Whether the termination on account of redundancy was fair and lawful

Holding

The reason for the redundancy (failure to grow membership sufficient to sustain the branch) was valid and substantive, but the procedure in section 40 of the Employment Act was not complied with, rendering the termination un-procedural and unlawful

Reasoning

The court accepted that the closure of the Kitale office due to dropping membership fell within the statutory definition of redundancy and constituted a valid reason. However, the letter of 1st December 2022 served on 15th December 2022 did not satisfy the mandatory notification, notice and selection requirements of section 40. Following Kenya Airways v Aviation & Allied Workers Union, redundancy must be both substantively justified and procedurally fair; procedure was wanting.

p. 6
02

Whether the Claimant is entitled to the remedies sought

Holding

Severance pay for 8 years of service and one month's salary in lieu of notification/notice were awarded; reinstatement, acting allowance and general damages were declined

Reasoning

Having declared the termination un-procedural, the court awarded severance pay computed for the 8 years worked and one month's salary in lieu of the section 40 notification and notice. Reinstatement was impossible because the office had been closed and no exceptional circumstances under section 49(4)(c) and (d) were shown. The acting allowance claim was not proved.

p. 6

Legal principles established

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  • Termination of employment through redundancy ought to be both substantially justified and procedurally fair, and an employer must comply with the conditions in section 40 of the Employment Act
  • A redundancy notice that does not meet the mandatory statutory requirements of section 40 renders the termination un-procedural and unlawful

Court orders

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  1. 1.A declaration that the termination of the Claimant on account of redundancy was un-procedural
  2. 2.Award of severance pay in the sum of Kshs. 88,000
  3. 3.Award of one month's salary in lieu of the one month's notification under section 40(1)(b) and one month's salary in lieu of notice under section 40(1)(vi) at Kshs. 42,000
  4. 4.The Respondent shall meet the Claimant's costs of the suit assessed at Kshs. 20,000
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under Article 162(2) of the Constitution (implied; not expressly cited in the reproduced judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Nyawanga v Kenya Plantation & Agricultural Workers Union (Employment and Labour Relations Cause E007 of 2024) [2025] KEELRC 1982 (KLR)", Case Analysis (2025). Not stated in the judgment as reproduced. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1982/eng@2025-07-03

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.