Migiro & 15 others v Registered Trustees of National Council of Churches of Kenya & another (Cause E175 of 2021) [2025] KEELRC 2994 (KLR)
The bottom line
#A Kenyan court ruled 16 employees were unfairly retrenched because the hospital skipped mandatory redundancy notices, selection criteria, and then refilled the same jobs.
What this practically means
#Executive summary
#Key legal issues
#Procedural fairness of the redundancy (notices)
Termination was unfair because the mandatory one month notices to employees and the Labour Officer under Section 40(1)(b) were not issued; the notice to the Labour Office reached it two days after the redundancy took effect.
RW2, the Respondents' own HR Manager, confirmed the notices took effect immediately on 9th March 2020 and that the letter to the Labour Office was received on 11th March 2020, after the termination. Section 40(1)(b) requires notification not less than a month prior. Following Kenya Airways v Aviation & Allied Workers Union, the court held the notice requirement was breached, rendering the process procedurally unfair.
Consultation and selection criterion
There were no pre-redundancy consultations and no selection criterion; the Section 40 procedure was disregarded entirely.
The Respondents' witness had no Board resolution or minutes on the redundancy. The court found the Respondents did not attempt consultations nor consider criteria, holding the procedure was 'thrown out the window'. The employer cannot impose its own model where none existed; the criterion must be objective and demonstrable.
Justification for the redundancy
The redundancy was not genuinely justified since the same positions were refilled, including the 1st Claimant's former Head of Clinical Services position.
RW2 admitted the position previously held by the 1st Claimant had since been filled. The court reasoned that refilling positions declared redundant shows the redundancy was not only unprocedural but possibly unnecessary, failing the test of reasonableness and the requirement that services be genuinely rendered superfluous.
Remedies
Claimants entitled to severance pay at 15 days per completed year, one month's pay in lieu of notice, leave pay and 9 days' salary; pension claim referred to the RBA; no compensation for unfair termination as none was pleaded.
The Claimants' evidence that dues were unpaid was uncontroverted, and the Respondents' own tabulation omitted severance pay. Severance, notice pay, leave pay and days worked were awarded per claimant. Pension was ousted by the RBA regime; damages for unfair termination were refused because not sought in the pleadings.
Legal principles established
#- Redundancy is a legitimate ground for termination only where the employer proves actual redundancy and compliance with Section 40 of the Employment Act
- The one month notice of intended redundancy to employees and the Labour Officer under Section 40(1)(b) is mandatory
- An employer must have an objective selection criterion for redundancy
- Redundancy must rest on operational requirements and must not disguise a dismissal; filling the same positions afterwards negates it
Court orders
#- 1.A declaration that the Claimants were unfairly terminated
- 2.An order that the Respondents pay the Claimants one month salary in lieu of notice
- 3.Salary for the 9 days worked in March, 2020
- 4.Severance pay (15 days' pay for every year served)
- 5.The awards are subject to statutory deductions
- 6.Costs to be borne by the Respondents
- Jurisdiction invoked
- Original employment and labour relations jurisdiction (Employment Act, 2007; Employment and Labour Relations Court Act)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Migiro & 15 others v Registered Trustees of National Council of Churches of Kenya & another (Cause E175 of 2021) [2025] KEELRC 2994 (KLR)", Case Analysis (2025). Not stated in the judgment (Memorandum of Claim dated 16th February, 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2994/eng@2025-10-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.