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ELRCPartially AllowedMombasa CMELRC No. E318 of 2022 (appeal)· [2025] KEELRC 3689 (KLR)

Export Consolidated Services Kenya Limited v Gitau (Appeal E162 of 2025) [2025] KEELRC 3689 (KLR)

Employment and Labour Relations Court
18 December 2025
2,774 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~11 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court upheld a lawful redundancy but limited underpayment claims to 12 months, awarding severance pay the trial court had missed.

What this practically means

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Executive summary

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This is a first appeal from the judgment of the Magistrates' Court at Mombasa in CMELRC No. E318 of 2022 delivered on 4 August 2025, in which the respondent, a former turn man and truck driver employed by the appellant, was awarded notice pay, underpayments, house allowance and 8 months' compensation after the trial court found his employment was unfairly terminated through redundancy. The appellant appealed on four grounds, contending that the redundancy complied with section 40 of the Employment Act, that the awards of underpayments and house allowance were time-barred and unjustified, and that the compensation award was excessive. The court reassessed the record as a first appeal. It found that the appellant issued a general redundancy notice to all employees on 15 October 2021 and a personal notice setting out selection criteria, which the respondent did not challenge, and therefore the mandatory section 40 procedures were complied with and the termination was lawful. It held underpayments to be continuing injuries under section 90 claimable only within 12 months of cessation, awarding Ksh. 13,741.80 only. It awarded severance pay of Ksh. 60,585.45 for 6 completed years at 15 days per year, which the trial court had overlooked. It rejected the overtime claim as dishonest and unjust enrichment and found leave taken or paid. Compensation and notice pay awards were set aside. Each party was ordered to bear its own costs in the appeal and trial court.

Key legal issues

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01

Compliance with section 40 redundancy procedures

Holding

The appellant complied: general notice issued 15 October 2021, personal notice setting criteria, and the respondent did not challenge the documents

Reasoning

The court found the notices set out criteria (seniority, skills, abilities, reliability) for identifying affected employees. The respondent did not challenge the application of the criterion to him, only claiming he was not served with the general notice, and the trial court's contrary finding was unsupported.

p. 5
02

Limitation of underpayment claims under section 90

Holding

Underpayments are continuing injuries claimable within 12 months of cessation of employment; only 12 months' underpayment of Ksh. 13,741.80 awarded

Reasoning

Claims dating from 2010 to 2018 as a turn man and earlier truck driver service fell outside the 12-month window. Employment converted from casual to written contract on 4 January 2016, so earlier claims had to be addressed within that contract and section 90.

p. 5
03

Compensation for unfair termination

Holding

Not due; termination was lawful as section 40 procedures were followed

Reasoning

Having found the redundancy lawful and the procedures adhered to, the award of 8 months' compensation and notice pay by the trial magistrate lacked evidential foundation and was set aside.

p. 5
04

Severance pay

Holding

Due under section 40 at 15 days per completed year; 6 full years (4 January 2016 to 15 January 2022) yields Ksh. 60,585.45

Reasoning

The trial court failed to address severance despite the redundancy. Using the last due wage of Ksh. 20,195.15 (minimum wage plus 15% house allowance), severance was computed for 6 completed years.

p. 6
05

First appeal duty

Holding

The court reassessed the record while according due regard to the trial court's advantage of observing witnesses

Reasoning

As a first appeal, the court is obliged to reassess the evidence and reach its own conclusions, recognising that the trial court saw and heard the witnesses testify.

p. 4

Legal principles established

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  • A general notice to employees followed by a personal notice, setting out selection criteria, satisfies section 40 of the Employment Act in a redundancy
  • Where the employee is not issued with the necessary notice, payment in lieu of notice is allowed under section 40(1)(f) of the Employment Act
  • Underpayments are a continuing injury under section 90 of the Employment Act and must be claimed within 12 months of cessation
  • Costs in employment claims do not automatically follow the cause and must be justified

Court orders

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  1. 1.Employment of the respondent was lawfully terminated
  2. 2.Underpayments, including house allowance, Ksh. 13,741.80
  3. 3.Severance pay for 6 years Ksh. 60,585.45
  4. 4.For the appeal and trial court, each party to bear its costs
On appeal from
Magistrates' Court (ELRC), Mombasa
Mombasa CMELRC No. E318 of 2022
Jurisdiction invoked
First appeal from the magistrates' court under the Employment Act and Employment and Labour Relations Court Act

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, "Export Consolidated Services Kenya Limited v Gitau (Appeal E162 of 2025) [2025] KEELRC 3689 (KLR)", Case Analysis (2025). Mombasa CMELRC No. E318 of 2022 (appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/3689/eng@2025-12-18

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