Cheva v Pan Africa Logistics Limited (Environment and Land Case E298 of 2024) [2026] KEMC 811 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Period of service
Proved period of employment was 28th November 2012 to 30th September 2023, approximately ten years and ten months (10 completed years).
The Claimant pleaded commencement in December 2011, but the written contract dated 28th November 2012 and the Respondent's witness testimony consistently pointed to November 2012. The 2014 promotion letter was consistent with existing employment but did not prove 2011 commencement. The court applied the balance of probabilities standard.
Substantive justification for redundancy
Financial distress existed but the Respondent failed to establish by evidence proximate to September 2023 that the Claimant's position had become redundant.
Although auctioneer's proclamation and correspondence showed genuine financial strain, the Respondent produced no organisational structure, staffing comparison or restructuring report showing what changed in September 2023 or why the Claimant's services became superfluous. The Respondent's own submission characterised the situation as inability to afford the salary rather than superfluity of the position.
Procedural compliance with section 40
The 2021 redundancy process had been overtaken by events; no fresh notice, Labour Officer notice or contemporaneous consultation preceded the September 2023 termination, rendering it procedurally unfair.
The Claimant survived the 2021 exercise, continued serving nearly two more years, was placed on unpaid leave and then recalled to active work immediately before termination. Fairness required any later redundancy to relate to circumstances existing at the later time. No fresh notice or application of selection criteria in 2023 was proved.
Compensation for unfair termination under section 49(1)(c)
Six months' gross salary (KShs. 159,390) awarded as fair and proportionate; the twelve months sought was excessive.
The court weighed nearly eleven years of diligent service with no misconduct against the Respondent's genuine financial difficulty, its attempts since 2021 to retain employees, the Claimant's signed unpaid leave arrangement, and partial settlement of terminal dues. The maximum twelve months would be excessive in the circumstances.
Legal principles established
#- Redundancy requires both substantive justification and procedural fairness; it is not merely an employer's administrative label.
- An employer bears the evidentiary burden under sections 43 and 45 of demonstrating the operational decision rendering an employee's services redundant at the material time.
- A redundancy notice cannot operate indefinitely where material intervening events occur; the notice and consultations must remain causally and temporally connected to the termination ultimately effected.
- Severance pay under section 40(1)(g) is a specific statutory consequence of redundancy; NSSF or pension scheme membership does not displace the obligation.
- Section 35(6) concerning statutory service pay does not, without more, erase an independently negotiated contractual gratuity entitlement.
- Special pecuniary losses must be specifically pleaded and strictly proved.
Court orders
#- 1.Declaration that the termination of the Claimant's employment on 30th September 2023 did not comply with the substantive and procedural requirements applicable to redundancy and was consequently unfair within the meaning of section 45 of the Employment Act, 2007
- 2.Severance pay of KShs. 132,825.00
- 3.Outstanding contractual gratuity of KShs. 75,472.50
- 4.Compensation for unfair termination of six months' salary, KShs. 159,390.00
- 5.Total award of KShs. 367,687.50 with interest at court rates from the date of judgment until payment in full
- 6.Respondent to issue the Claimant with a Certificate of Service within thirty (30) days
- 7.Claimant to have the costs of the suit
- Jurisdiction invoked
- Employment and Labour Relations jurisdiction of the Magistrates Court (Employment Act, 2007); original employment cause
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Cheva v Pan Africa Logistics Limited (Environment and Land Case E298 of 2024) [2026] KEMC 811 (KLR)", Case Analysis (2026). MCELRC Cause No. E298 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/811/eng@2026-08-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.