Muthoka v Kiri Consult Limited (Cause E873 of 2022) [2025] KEELRC 2760 (KLR)
The bottom line
#A Kenyan court awarded an engineer Kshs. 1.2 million because his employer skipped mandatory redundancy notices and consultation under the Employment Act.
What this practically means
#Executive summary
#Key legal issues
#Whether the termination on account of redundancy was lawful and fair
The termination was unlawful and unfair; the Respondent failed to issue the redundancy notice required by Section 40(1)(a) and (b), did not demonstrate consultation, and failed the selection-criteria test under Section 40(1)(c).
The court set out the mandatory conditions in Section 40 of the Employment Act, including one-month notice of intention to declare redundancy to the employee and the Labour Officer, consultation, and an objective selection criterion. The Respondent alleged a consultative meeting but produced no record of it, and the Claimant denied attending any such meeting. The Respondent also gave no basis, beyond an unverified claim of low workload, for selecting the Claimant. Non-compliance with these statutory conditions rendered the termination unlawful and unfair.
Whether the Claimant was entitled to compensation and severance pay
The court awarded eight months' salary in compensation, considering the Claimant's long service but moderating the award because he had been paid terminal dues including severance pay.
Having found the termination unlawful and unfair, the court exercised its discretion under Section 49 of the Employment Act to award compensation. It took into account the Claimant's eleven years of service but moderated the equivalent of twelve months sought, noting the Respondent had paid terminal dues including severance pay. The salary arrears claim failed for want of proof.
Whether the Claimant was underpaid for January to September 2022
The claim for salary arrears was not proved and was disallowed.
The Claimant alleged entitlement to a salary increment under the permanent staff salary scale 2021-2023 based on a promised review by the Managing Director. The court found the claim unproved and disallowed it, without awarding the Kshs. 449,100 sought.
Legal principles established
#- The redundancy notice under Section 40(1)(a) and (b) of the Employment Act is separate and distinct from the termination notice under Section 40(1)(f).
- Consultation with parties affected by a redundancy is an essential ingredient of the redundancy process and goes to substantive fairness.
- An employer departing from last-in-first-out in redundancy selection must show the criteria adopted are reasonable and applied rationally and objectively.
Court orders
#- 1.Eight (8) months' salary in compensation for unlawful and unfair termination of employment
- 2.Judgment entered in favour of the Claimant in the sum of Kshs. 1,200,800
- 3.The award is subject to statutory deductions
- 4.Interest at court rates from the date of judgment until payment in full
- 5.The Claimant to have the costs of the case
- Jurisdiction invoked
- Original jurisdiction of the Employment and Labour Relations Court under the Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Muthoka v Kiri Consult Limited (Cause E873 of 2022) [2025] KEELRC 2760 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2760/eng@2025-10-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.