Abdule v Bash Hauliers Limited (Employment and Labour Relations Appeal E065 of 2024) [2025] KEELRC 3769 (KLR)
The bottom line
#Kenya's Employment Court ruled an employer must prove a redundancy is genuine and consult employees first, awarding a dismissed security guard eight months' salary.
What this practically means
#Executive summary
#Key legal issues
#Whether the redundancy was genuine and the termination substantively fair
No; the Respondent established no genuine redundancy. It merely asserted an economic downturn and downsizing without evidence of the process, and the termination was substantively unfair.
The court held that redundancy is a process, not an event, and an employer must lead evidence of when the right-sizing idea was conceived, deliberations held, the decision made, and the steps followed; financial statements would be expected to prove a downturn. No such evidence was placed before the trial magistrate. Some employees were discharged while others were retained, yet no selection criteria were produced, warranting an adverse inference. The assertion of an economic downturn could not displace the Appellant's testimony that his dismissal was to enable fresh hiring.
Whether the redundancy procedure complied with section 40 of the Employment Act
The single one-month notice conformed with section 40 as clarified in Cargill Kenya Limited (no second notice under section 40(1)(f) is required), but the Respondent failed to prove any consultation prior to the declaration of redundancy, rendering the procedure unfair.
The court traced the confusion over whether section 40 mandates two notices and adopted the Court of Appeal's clarification in Cargill Kenya Limited v Caroline Mutuna Mwaka that section 40(1)(f) concerns payment, not a notice of termination. However, consultation before declaring redundancy is required in the Kenyan context, as emphasised in Barclays Bank of Kenya Ltd v Gladys Muthoni. The Respondent tendered no evidence of consultations, and the Appellant's contention that there were none was found convincing.
Whether the Appellant was entitled to relief under section 49(1) of the Employment Act
Yes; compensatory relief of eight months' gross salary (KShs. 189,168) was granted, having regard to the Respondent's non-compliance with binding legal provisions, length of service and absence of proven contribution by the Appellant.
Having found the termination substantively and procedurally unfair, section 49(1)(c) was engaged, conferring discretionary authority to grant compensatory relief. The court weighed the Respondent's failure to comply with explicit and binding legal provisions, the length of service, and the absence of any proven contribution by the Appellant to the termination. On the date of employment, the unchallenged letter of appointment dated 26th July 2010 fixed service at 10 years, so severance pay computation was not improper and the trial magistrate did not err on that head.
Legal principles established
#- In a challenge to the fairness of a redundancy termination, the onus is on the employer to satisfy the court that there was a genuine redundancy situation and a fair and valid reason for termination.
- An employer's mere assertion of a financial downturn or right-sizing is insufficient; it must lead cogent evidence of the redundancy process.
- Where an employer withholds material on selection criteria for redundancy, an adverse inference is drawn against it.
- Section 40(1)(f) of the Employment Act does not require a second notice of termination before declaring a redundancy; it concerns payment, and only the notice under section 40(1)(a) and (b) is required, per Cargill Kenya Limited.
- Consultation prior to the declaration of redundancy is mandatory in the Kenyan context.
- The function of a first appellate court is to re-examine the evidence afresh and reach its own conclusions, making due allowance for not having seen or heard the witnesses.
Court orders
#- 1.The Learned Trial Magistrate's finding that the termination of the Appellant's employment was fair is set aside; instead a determination that the termination was both procedurally and substantively unfair is made.
- 2.A compensatory award pursuant to section 49(1) of the Employment Act is granted to the Appellant, equivalent to eight (8) months' gross salary, KShs. 189,168.
- 3.Costs of the lower court suit are awarded to the Appellant, based on the awarded figure.
- 4.Each party is to bear its own costs of this appeal.
- On appeal from
- Principal Magistrate's Court
- Not stated in the judgment text supplied
- Jurisdiction invoked
- First appellate jurisdiction of the Employment and Labour Relations Court over appeals from the subordinate court in employment and labour relations matters (Employment and Labour Relations Court Act)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Abdule v Bash Hauliers Limited (Employment and Labour Relations Appeal E065 of 2024) [2025] KEELRC 3769 (KLR)", Case Analysis (2025). Not stated in the judgment text supplied (the Memorandum of Appeal dated 18th April 2024 against the judgment and decree of the Learned Principal Magistrate delivered 29th February 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/3769/eng@2025-05-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.