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ELRCPartially AllowedCause No 605 of 2018· [2025] KEELRC 2406 (KLR)

Sembe v IBM East Africa Limited (Cause 605 of 2018) [2025] KEELRC 2406 (KLR)

Employment and Labour Relations Court
17 July 2025
4,289 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court ruled IBM East Africa's redundancy was unfair because it couldn't prove the criteria used to select one employee over a peer, awarding six months' pay.

What this practically means

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Executive summary

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The Claimant, a Security Specialist employed by IBM East Africa from 15th April 2014, was declared redundant effective 30th April 2018 following the Respondent's adoption of the 'Small Country Model'. He sued, seeking an injunction, a contempt declaration and committal, disclosure of selection criteria, reinstatement or alternatively 12 months' compensation. The Respondent defended the redundancy as arising from a genuine business restructuring that eliminated support roles, and contended the Claimant's peer, Bernard Oganga, was retained as Country Security Manager. The court distilled two issues: the fairness of the termination and entitlement to reliefs. On fairness, it held that the Respondent failed to discharge its burden of proving an objective selection criterion under Section 40 of the Employment Act, producing no appointment letter or concrete evidence that Oganga had replaced Lucky Kambale or was the Claimant's supervisor; the court therefore found Oganga was the Claimant's peer. Further, the Respondent unilaterally treated the injunctive order - served at 4:15 pm on the last working day - as overtaken by events, when only the issuing court could make that determination, and its evidence on the handover of company property was contradictory. The termination was found procedurally and substantively unfair. On relief, the court awarded six months' gross salary (KShs. 1,917,570) with interest, a declaration of unfair termination, and costs to the Claimant, but declined the contempt declaration (contempt requiring a separate Notice of Motion process) and the 12-month compensation sought. Judgment delivered virtually in Mombasa on 17th July 2025 by Ocharo Kebira, Judge.

Key legal issues

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01

Whether the redundancy selection criterion was objective and procedurally fair

Holding

The termination was procedurally unfair because the Respondent failed to prove the selection criterion used to choose the Claimant over his peer Barnard Oganga.

Reasoning

The Respondent had to prove that Oganga was appointed to replace Lucky Kambale and thus was not the Claimant's peer. It produced no appointment letter or specific oral evidence. Given LIFO and the Claimant's longer service and experience, the criterion mattered, yet only a bare assertion was made, contrary to the principles in Kenya Airways Ltd.

p. 7
02

Whether the Respondent defied the injunctive order by effecting the termination on 30th April 2018

Holding

Implementation of the redundancy notice was illegal and unfair because the order was served within working hours on the last day and the Respondent unilaterally decided it had been overtaken by events.

Reasoning

RW2's contradictory evidence on the handover (Barnard allegedly received assets from Francis, not the Claimant) undermined the Respondent's candour. No system evidence showed the Claimant was logged off at 11:30 am. A reasonable employer would have moved the court that issued the order for discharge or directions rather than deciding on its own.

p. 8
03

Substantive fairness of the redundancy

Holding

The termination was substantively unfair.

Reasoning

Having found procedural unfairness in the selection and defiance of the injunctive order, the court held the redundancy of the Claimant on account of the Small Country Model restructuring was substantively unfair, warranting compensatory relief under Section 49(1)(c).

p. 8
04

Quantum of compensation and other reliefs

Holding

Six months' gross salary (KShs. 1,917,570) awarded; contempt and reinstatement prayers declined.

Reasoning

Under Section 49(1)(c) the court's power is discretionary. Considering the non-conformity with fairness dictates, the no-fault nature of redundancy, length of service and absence of fault, six months' compensation was appropriate. Contempt could not be determined within the main suit and reinstatement was impossible as the position no longer existed.

p. 8

Legal principles established

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  • An employer selecting one of two comparable employees for redundancy bears the obligation to demonstrate that the decision was based on an objective selection criterion.
  • An employer may not unilaterally declare a court's temporary injunctive order overtaken by events; only the court that issued the order could make that determination.
  • Contempt of court cannot be litigated within a main claim; it requires a distinct procedural framework commenced by Notice of Motion.

Court orders

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  1. 1.A declaration that the termination of the Claimant's employment on account of redundancy was unfair.
  2. 2.Compensation for unfair termination pursuant to Section 49[1][c] of the Employment Act, KShs. 1,917,570.
  3. 3.Interest on the compensation at court rates from the date of Judgment until payment in full.
  4. 4.The Respondent shall bear the costs of this suit.

Authorities

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Legislation

  • Employment ActSection 2
  • Employment Act, 2007Section 40, Section 40[1][c], Section 49[1][c]
  • Labour Relations Act, 2007Section 2

Cases cited (3)

  • Kenya Airways Limited v Aviation & Allied Workers Union Kenya & 3 Others
    [2014] eKLR
  • Jane Khalechi v Oxford University Press EA Limited
    [2013] eKLR
  • Habiba Ali Mursal & 4 Others v Mariam Noor Abdi
    [2018] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under Section 49(1)(c) of the Employment Act, 2007 (first-instance employment claim)

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, "Sembe v IBM East Africa Limited (Cause 605 of 2018) [2025] KEELRC 2406 (KLR)", Case Analysis (2025). Cause No 605 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2406/eng@2025-07-17

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