Kibanga & 2 others v Kasha Technologies Limited (Cause E021 of 2025) [2025] KEELRC 2959 (KLR)
The bottom line
#Kenyan employers cannot hide behind a contract's termination clause; they must still give fair reasons and follow due process before dismissing employees.
What this practically means
#Executive summary
#Key legal issues
#Whether invoking a contractual termination clause satisfies the Employment Act
No - the termination clause is now regulated in law, and the employer must still observe procedural and substantive fairness under sections 41, 43 and 45 of the Act
The Constitution 2010 entrenched fair labour practices under Article 41. The Employment Act introduced minimum terms and a duty to give reasons, departing from the traditional power of employers to terminate at will. Even where a written contract allows termination on notice, the mandatory due process of the Act applies; simple reliance on the clause without reasons or process was empty in the context of the Act.
Whether there was a redundancy entitling the claimants to severance pay
No - there was no redundancy under section 40 of the Act; the termination notices assigned no reasons and mentioned no financial constraints
The notices dated 25 October 2024 assigned no particular reasons and made no mention of financial constraints that would infer a redundancy. The one-month notice corroborated the respondent's invocation of the contractual termination clause, not a redundancy declaration. Severance pay under section 40 was therefore not due.
What compensation is appropriate for the unfair termination
10 months' gross salary for the 1st claimant (Ksh. 5,750,000) and 5 months' gross salary for the 3rd claimant (Ksh. 1,500,000)
The 1st claimant served 4 complete years with no adverse performance record, and would have continued but for the respondent's unlawful conduct. The 3rd claimant served one year and 2 months, was diligent, and had even secured insurance against redundancy. The court assessed compensation at 10 months' and 5 months' gross salary respectively.
Legal principles established
#- The Employment Act, read with Article 41 of the Constitution, introduced a paradigm shift: an employer cannot rely on a contractual termination clause at will; procedural and substantive fairness under sections 41, 43 and 45 of the Act remain mandatory even where the written contract allows termination on notice
- Reliance on a termination clause without lawful or justified grounds renders termination unfair
Court orders
#- 1.A declaration that employment was terminated unfairly
- 2.1st claimant awarded compensation Ksh. 5,750,000
- 3.3rd claimant awarded compensation Ksh. 1,500,000
- 4.Claimants awarded costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act and Article 41 of the Constitution (fair labour practices)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kibanga & 2 others v Kasha Technologies Limited (Cause E021 of 2025) [2025] KEELRC 2959 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2959/eng@2025-10-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.