Elye Abdulhalim Abbas v Eman Girls Educational Centre
The bottom line
#A Kenyan court ruled a school principal's redundancy was unfair because the employer skipped mandatory legal steps, awarding her over Kshs. 1.2 million.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.On what account was the Claimant's employment terminated?
- 2.Was the termination substantively justified and procedurally fair?
- 3.What reliefs, if any, is the Claimant entitled to?
Key legal issues
#Whether the termination was on account of redundancy
The termination was on account of redundancy, whether viewed through the employer's letter citing imminent closure or the documents showing reorganisation into a merged institution
The termination letter gave a reason lying entirely within the employer's enterprise - imminent closure of business - rendering the Claimant's services no longer tenable. Every element of the section 2 definition of redundancy was present: involuntary loss of employment through no fault of the employee at the employer's initiative. Documents showed a merger into Emaniyaat Modern Academy, making the Principal's position superfluous.
Whether redundancy can arise where the employer ceases to exist
No - the contention was rejected; closure of an undertaking is the clearest instance of services becoming superfluous, and the employer had not in any event ceased to exist
The statutory definition concerns why and how the employee lost her job, not the employer's fate afterwards. Further, the premise was false: at termination the Respondent was a going concern, it still existed, filed a response and witness statement, and the company behind it was not shown to be wound up or dissolved.
Whether the termination was substantively justified
Yes - the operational requirements reason (financial distress and reorganisation) was genuine, a valid and fair reason under sections 43 and 45(2)
Although the Respondent's own financial evidence was sparse, the Court examined the whole record including the Claimant's documents: minutes recording a year of salary delays, the staff letter warning of withdrawal of services, the Misbah-Ul-Kheir letter attributing closure to financial constraints, and the unpaid September salary. The Claimant's witness's allegation of engineering could not be sustained.
Whether the termination was procedurally fair
No - the termination breached section 40(1) in all respects and section 41, and was procedurally unfair under section 45(2)(c)
The Respondent failed to give the notice of intended redundancy to the employee and Labour Officer, did not consult, disclosed no selection criteria while excluding the Claimant from reapplication, and had not paid leave, notice and severance. The requirements being conjunctive, failure on any one would render the termination unfair; here the failure was on all of them.
Whether the contractual notice clause (15.3) took the termination outside the Employment Act
No - a notice clause regulates length of notice only and cannot displace statutory requirements of valid reason and fair procedure
Sections 43 and 45 impose requirements on every employer that cannot be contracted out of. Clause 15.3 must be read with clauses 15.1, 15.2 and 15.5(d), which themselves return the inquiry to legally acceptable grounds and to the Employment Act. Where the reason is redundancy, section 40 prescribes mandatory steps.
Whether compensation for the unexpired term of the contract is payable
No - settled by the Supreme Court in Ngokonyo v Telkom Kenya; anticipatory earnings are not recoverable, but the unexpired term is a factor in section 49(1)(c) compensation
The Supreme Court held that judicial consensus has moved away from anticipatory salary awards, which amount to unjust enrichment and offend public policy; employees are paid for services actually rendered. The principle applies equally to the unexpired portion of a fixed-term contract, the more so where the contract was terminable on one month's notice.
Assessment of compensation under section 49(1)(c)
Seven months' gross salary (Kshs. 840,000) awarded, balancing the unexpired term and blamelessness against the short service, the genuine reason and the Claimant's employability
Factors favouring the Claimant: no contribution to the termination, close to three years left on a fixed-term contract, legitimate expectation, exclusion from reapplication without explanation, unpaid dues. Against: only about two years' service, the genuine financial reason, and her professional standing enabling comparable employment.
Whether notice pay was spent because one month's notice was given
No - the Claimant was barred from working from the first day of the notice and unpaid; a notice for which nothing was paid is no notice at all
A notice period is one during which employment subsists and the employee is paid so she may find her feet. Here the Claimant was sent on terminal leave, the clearance form recorded cessation from 1st September 2025, and she was not paid. Section 40(1)(f) requires the employer to have paid the notice or wages in lieu.
Legal principles established
#- All the conditions in section 40(1) of the Employment Act are conjunctive and each is a condition precedent to a lawful redundancy
- Redundancy can arise where the employer's business closes; the statutory definition does not require the employer's business to continue
- A contractual notice clause cannot displace the statutory requirements of valid reason and fair procedure; they cannot be contracted out of
- No award may be made for anticipatory salaries or the unexpired term of a contract, per the Supreme Court in Ngokonyo v Telkom Kenya
- A notice of termination is not the notice of intended redundancy contemplated by section 40(1)(a) and (b); the distinction is one of substance
- Certificate of service under section 51 is unconditional and not contingent on clearance
Court orders
#- 1.A declaration that the termination of the Claimant's employment was procedurally unfair and unlawful
- 2.Compensation under section 49(1)(c) of the Employment Act of seven months' gross salary: Kshs. 840,000
- 3.Salary for September 2025: Kshs. 120,000
- 4.One month's salary in lieu of notice: Kshs. 120,000
- 5.Severance pay: Kshs. 120,000
- 6.Accrued leave of 21 days: Kshs. 84,000
- 7.Sums awarded subject to statutory deductions, if any, applicable in law
- 8.Interest on the sums awarded at court rates from the date of judgment until payment in full
- 9.The claim for Kshs. 4,080,000 for the unexpired term of the contract, and the claim for general damages, dismissed
- 10.The Respondent to issue the Claimant with a certificate of service under section 51 of the Employment Act within thirty (30) days of the judgment
- 11.The Respondent to bear the costs of the suit
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Court Act over employment disputes; bound by Supreme Court under Article 163(7) of the Constitution
Relief refused
#Compensation for the unexpired term of the contract (Kshs. 4,080,000)
The Employment Act does not provide for anticipatory earnings; remedies for unfair termination are those in section 49, and payment for work not done is not among them
General damages
Section 49(1)(c) compensation is the statutory remedy and the circumstances were already taken into account; a further award would be double compensation; no basis for punitive or exemplary damages
Return of the lesson plan book
Not among the prayers in the Statement of Claim; the Respondent stated it has no claim over the Claimant's personal effects
Costs
The Respondent shall bear the costs of the suit; interest on the sums awarded at court rates from the date of judgment until payment in full.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
A contractual notice clause regulates the length of notice; it does not, and cannot, displace the statutory requirements that a termination be for a valid and fair reason and in accordance with a fair procedure.
The closure of a school is a process, not a day's event. It does not happen by the stroke of a pen.
A redundancy must therefore be genuine. It cannot be used as a cloak for getting rid of an unwanted employee.
Consultation has to be a reality, not a charade.
Clearance is a legitimate administrative step, but it cannot be employed to suspend, indefinitely, the payment of dues that the statute makes a condition of the termination itself.
A declaration is hereby issued that the termination of the Claimant's employment by the Respondent was procedurally unfair and unlawful;
The claim for Kshs. 4,080,000 for the unexpired term of the contract, and the claim for general damages, are dismissed;
The Respondent shall issue the Claimant with a certificate of service in terms of section 51 of the Employment Act within thirty (30) days of this judgment; and
The Respondent shall bear the costs of the suit.
Issues in the judgment
#Disposition declaration qualifies the termination as 'procedurally unfair' whereas paragraph 69 declares it 'unlawful and unfair' simpliciter
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Elye Abdulhalim Abbas v Eman Girls Educational Centre", Case Analysis (2026). ELRC Cause No. E012 of 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2747/eng@2026-09-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.