Nyachieo & 9 others v Kenya Orient Insurance Ltd (Cause 179 of 2019) [2026] KEELRC 2423 (KLR)

The court upheld the managerial prerogative to restructure, relying on Kenya Airways and Josephine M Ndungu. It took judicial notice of the respondent's financial constraints as acknowledged in Sang v Kenya Orient. Each claimant's allegation of replacement was individually assessed and found unproved: alleged replacements lacked evidence, and advertisement of positions about a year later reflected changing business demand.

The court found the section 40 notices unchallenged and terminal dues paid. Relying on Cargill Kenya v Mwaka and Kenya Airways, consultation is implied in section 40 and required by Article 47 and the Fair Administrative Action Act. The 4th Claimant, undisputedly on maternity leave, was called only to pick up her notice and did not attend the town hall consultation, breaching the mandatory consultation requirement.

Section 46 (pregnancy as unfair reason) was held inapplicable because termination was not disciplinary or pregnancy-based. However, failing to treat the claimant on maternity like all other employees by not calling her to the consultation meeting violated her right to consultation. Compensation was calibrated at three months' gross salary as the violation was not gross.

Applying 'he who alleges proves', individual claimants failed to produce job descriptions, comparators' qualifications or other evidence of replacement. Abolition of sole-holder positions (registry clerk, HR manager) was a valid business decision. Positions advertised about a year later did not invalidate the earlier abolition since business demand changes over time.