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ELRCDismissedMemorandum of Claim dated 4th March 2020· [2025] KEELRC 2518 (KLR)

Kibocha v Internet Solutions Kenya Limited (Cause 141 of 2020) [2025] KEELRC 2518 (KLR)

Employment and Labour Relations Court
25 September 2025
LNLINNET NDOLO
2,968 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court upheld a redundancy where the employer followed the legal process and offered the employee a chance to apply for new roles.

What this practically means

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Executive summary

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The Claimant, formerly Deputy Chief Financial Officer of the Respondent from 1st July 2012 until 31st October 2019, challenged the termination of her employment on grounds of redundancy. She alleged the redundancy was fabricated to push her out after she declined requests to resign, that her position was unilaterally abolished, split and advertised, that the Section 40 procedure was not followed, and that she was discriminated against on the basis of gender, contrary to Articles 27(5) and 41(1) of the Constitution. She sought declarations of unfair termination and discrimination, twelve months' salary as damages, general damages for discrimination, costs and interest. The Respondent maintained that the restructuring of the Finance Department in 2019 was operational, driven by a wide span of control and governance risks, that the Claimant was invited to apply for two new positions at her level, declined to do so, and that all Section 40 requirements, including notice to the Labour Officer, were met. The Court framed two issues: whether the termination was lawful and fair, and whether remedies were due. It found a genuine redundancy, held that the notice requirements under Section 40 were fully satisfied, that selection criteria did not apply where only one position was affected, and that the offer to apply for new positions was reasonable accommodation which the Claimant rejected, effectively ending consultation. No evidence supported the discrimination claim. The entire claim was dismissed, with each party bearing their own costs in view of the past employment relationship.

Key legal issues

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01

Whether there was a genuine redundancy

Holding

The Court found a genuine redundancy arising from restructuring of the Finance Department to address a wide span of control

Reasoning

The Claimant, as DCFO, had five streams of officers reporting directly to her, a span the Court held was reasonably too wide. The alleged choreographing of the redundancy and the request to resign were not proved on evidence. The restructuring was operational, not targeted at the Claimant.

p. 7
02

Whether the Section 40 procedure was complied with

Holding

Notice requirements were fully met, including notice to the Labour Office; selection criteria under Section 40(1)(c) did not apply as only one position was affected

Reasoning

The Claimant was duly informed of the new structure and the Respondent produced evidence of notice to the Labour Office. Since the redundancy affected only one position, seniority/skill selection criteria were inapplicable. All statutory dues were paid.

p. 7
03

Whether the Claimant was discriminated against on grounds of gender

Holding

The discrimination claim failed for want of evidence

Reasoning

The Court found no evidence was led to support the claim of discrimination, notwithstanding allegations that male peers were not treated the same and no female applicants succeeded in the new positions.

p. 8
04

Effect of the Claimant's refusal to apply for the new positions

Holding

The offer to apply for the new positions constituted reasonable accommodation and the Claimant's rejection ended the consultation phase

Reasoning

The Court held the invitation to apply for either of the two new positions was a genuine effort to minimise the impact of restructuring; by rejecting it the Claimant effectively terminated consultation, leaving the Respondent no alternative but to terminate on redundancy grounds.

p. 7

Legal principles established

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  • Notices under Section 40(1)(a) and (b) of the Employment Act serve to enable consultation on measures to avert, minimise or mitigate redundancy
  • Genuine restructuring of a department is a valid reason for declaring redundancy
  • An employee who declines to apply for newly created positions cannot sustain a claim of unlawful redundancy

Court orders

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  1. 1.The Claimant's entire claim is dismissed
  2. 2.Each party shall bear their own costs
Jurisdiction invoked
Original jurisdiction of the Employment and Labour Relations Court under the Employment Act and Articles 27 and 41 of the Constitution

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, "Kibocha v Internet Solutions Kenya Limited (Cause 141 of 2020) [2025] KEELRC 2518 (KLR)", Case Analysis (2025). Memorandum of Claim dated 4th March 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2518/eng@2025-09-25

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