Odaga v Mijengo Investments Limited (Cause E218 of 2022) [2025] KEMC 51 (KLR)
The bottom line
#A Nakuru court ruled that terminating an employee as redundant the same day, without a month's notice, was unfair and ordered the employer to pay over KES 602,000.
What this practically means
#Executive summary
#Key legal issues
#Compliance with section 40 redundancy procedure
The redundancy was unfair because the Respondent produced no evidence of the requisite one month's notice to the Claimant and the Labour Officer; the letter issued terminated employment with immediate effect rather than notifying an intention to declare redundancy.
Section 40(1)(a) and (b) require at least one month's notice to the employee and the Labour Officer. The Respondent only produced a letter titled 'Termination of Employment' issued on the day of termination. Following Thomas De La Rue and Obayo, the one-month notification period applies equally to non-unionised employees. No evidence of a valid separation agreement existed. The failure was fatal and rendered the termination unfair.
Termination by mutual consent
No valid separation agreement was proved; the cheque and signature did not amount to mutual consent extinguishing statutory claims.
The Respondent argued the parties agreed to terminate by mutual consent, which would cure procedural non-compliance. The court found no evidence of a mutual agreement to terminate other than the redundancy termination letter, and the exhibited cheque related to a different employee.
Burden of proof on employment records
Since the Respondent failed to produce prescribed records, the Claimant's uncontroverted averments on leave, underpayments, overtime and public holidays were proved.
Sections 10(6), (7) and 74 of the Employment Act shift the evidential burden to the employer where prescribed records are not produced. The Respondent gave only blanket denials without proof, so the Claimant's claims stood uncontroverted and were awarded as pleaded.
Limitation of overtime, holiday and underpayment claims
The claims were not time-barred as the infringements were continuous in nature.
The Respondent argued limitation of time against the underpayment, overtime and public holiday claims. The court held the infringements were continuous, so the claims were not time-barred.
Legal principles established
#- For a redundancy to be valid, both the employee (or union) and the Labour Officer must be notified at least one month before the redundancy takes effect; failure to prove such notification renders the termination unfair.
- Where an employer fails to produce prescribed employment records, the burden of proving or disproving an allegation by the employee shifts to the employer.
- Claims for continuous infringements (overtime, public holidays, underpayments) are not time-barred.
Court orders
#- 1.Declaration that the decision to terminate the Claimant's services on 07/07/2022 on account of redundancy was unlawful and unfair
- 2.Judgment entered for the Claimant against the Respondent in the total sum of KES 621,556.98, less Kshs 19,384, i.e. net award of KSHS 602,172.98
- 3.The Respondent shall pay the Claimant's costs of this suit
- 4.The decretal sum shall attract interest at court rates from date of judgment until payment in full
- 5.30 days stay of execution granted (at delivery, unopposed)
- Jurisdiction invoked
- Employment Act, 2007 (sections 40, 45, 49, 10, 74) - first-instance employment claim
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Odaga v Mijengo Investments Limited (Cause E218 of 2022) [2025] KEMC 51 (KLR)", Case Analysis (2025). Cause No E218 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/51/eng@2025-03-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.