Airtel Networks Kenya Limited v Angela Shukuru Ilondanga

equivalent to twelve Page 2 of 27

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months' salary in the sum of Kshs. 1,596,096.00, for unfair termination; two months' salary in lieu of notice amounting to Kshs. 266,016.00; annual bonus compensation for the 2015 – 2016 period in the sum of Kshs. 178,456.00; payment of Kshs. 711,637.05 being the balance of an outstanding loan as at January 2016, together with costs of the suit and such other relief as the court deemed fit to grant. 3. The respondent’s case was that although the appellant purported to terminate her employment on account of redundancy, the redundancy was neither genuine nor lawfully carried out. She asserted that the reason advanced by the appellant was a sham because, after her termination, another individual was engaged to perform the same duties that she had previously discharged as Express Shop Manager, thereby demonstrating that her position had not in fact been abolished. She, therefore, contended that there was no valid operational or organizational basis for declaring her redundant. 4. The respondent further pleaded that the appellant failed to comply with the mandatory procedural requirements governing redundancy under section 40 of the Employment Act. In particular, she maintained that she was not served with the statutory one-month notice prior to the termination, that the relevant labour officer was not notified of the intended redundancy, and that the appellant failed to disclose or apply Page 3 of 27

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any objective selection criteria in choosing her for redundancy. According to the respondent, the appellant did not demonstrate consideration of the factors prescribed by law, including seniority in service, skill, ability, performance, and reliability among employees occupying similar positions. 5. In its statement of response filed on 13 th July 2016, the appellant denied liability and prayed that the respondent's suit be dismissed with costs. The appellant maintained that the termination of the respondent's employment was lawful, justified, and carried out in accordance with the provisions of the Employment Act governing redundancy. 6. The appellant's reorganization case was undertaken that, with following a view a to business improving operational efficiency and optimizing its human resource structure, a total of sixty-three positions within the organization were rendered redundant. Among the positions affected was that of Express Shop Manager, which the appellant asserted was completely abolished as part of the restructuring process. It was therefore the appellant's position that the respondent's employment was terminated solely because the office she occupied had ceased to exist within the organizational structure and not for any reason related to her conduct, performance, or capability. 7. The appellant further contended that it was entitled, as an employer, to reorganize its operations and workforce in pursuit Page 4 of 27

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of greater efficiency and reduced operational costs. It maintained that the decision to declare certain positions redundant was a legitimate managerial prerogative and formed part of a wider restructuring exercise affecting numerous employees rather than a measure directed specifically at the respondent. 8. In answer to the respondent’s allegation that another person had been employed to replace her after her termination, the appellant denied that any replacement had been recruited into the position of Express Shop Manager. It explained that the individual identified by the respondent, one Kennedy Oluoch, was not an employee of the appellant occupying the respondent's former position but was associated with an outsourcing arrangement subsequently adopted by the appellant. The appellant therefore maintained that the respondent’s position had in fact been abolished and that no replacement had been hired. 9. The appellant also asserted that it had complied with the statutory requirements relating to notification of redundancy. It relied on a notice dated 7 th December 2015, which was received by the Ministry of Labour, Social Security and Services on 9th December 2015. The notice informed the Ministry that sixty-three positions would be rendered redundant because of the restructuring exercise. On that Page 5 of 27

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basis, the respondent contended that the redundancy process was lawful and procedurally compliant. 10. During the hearing, the respondent testified that she had been employed by the appellant on 1 st April 2007 and had served continuously until 15th January 2016 when her employment was terminated on the ground of redundancy. She stated that through satisfactory performance she had risen through the ranks and had been appointed and subsequently confirmed as Express Shop Manager shortly before the impugned termination. She maintained that she had an unblemished employment record and had expected to continue serving the appellant. 11. The respondent's evidence was that the redundancy was not genuine because the position she occupied was never abolished. According to her, after her dismissal another individual was engaged to perform the same functions, she had previously undertaken, demonstrating that the appellant continued to operate the office and role which it had declared redundant. She therefore maintained that the redundancy was merely a pretext used to terminate her employment. 12. She stated that she was not given the statutory one-month notice of the intended redundancy prior to the termination of her employment. Instead, she received a letter dated 15 January 2016 terminating her employment with immediate effect on account of redundancy. She also maintained that, Page 6 of 27

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her knowledge, the relevant labour officer was not properly notified of the intended redundancy. 13. It was also her evidence that the appellant never disclosed the criteria used in selecting her for redundancy. She testified that she was not informed whether all positions of Express Shop Manager had been abolished or, if only some positions were affected, and why she had been selected. 14. On the issue of remedies, the respondent testified that she was entitled to compensation for unfair termination, notice pay, and bonus payments that would ordinarily have fallen due in June 2016. She further stated that at the time of termination, she had an outstanding staff loan balance of Kshs. 711,637.05 and that the abrupt termination adversely affected her ability to service that facility. She consequently sought the monetary reliefs set out in her statement of claim. 15. Irene Odera Kitinya (RW1), the appellant’s Human Resource Director, testified appellant’s respondent’s during position. It employment the trial in was her evidence was lawfully support of the that the terminated on account of a genuine redundancy arising from a companywide reorganization. She testified that the appellant had undertaken a restructuring exercise aimed at enhancing operational efficiency and reducing operational costs and that, therefore, sixty-three positions within the organization were rendered redundant. She stated that the respondent’s Page 8 of 27

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position of Express Shop Page 9 of 27

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Manager was among the positions affected and that the office she occupied was completely abolished as part of the restructuring process. 16. RW1 further testified that the appellant was entitled to reorganize its business and workforce in pursuit of greater efficiency and that the redundancy exercise was a legitimate business decision. According to the witness, the respondent's termination was not related to misconduct, poor performance, or any personal consideration, but was solely a consequence of the restructuring exercise which rendered her position superfluous. 17. In response to the respondent’s allegation that she had been replaced after her termination, RW1 denied that any replacement had been employed into the position of Express Shop Manager. The witness testified that the individual identified by the respondent, Kennedy Oluoch, was not employed by the appellant in the respondent's former position and may instead have been engaged through an outsourcing arrangement adopted by the appellant after the restructuring. 18. She also testified that the appellant had complied with the statutory notification requirements attendant to redundancy. In that regard, she relied on a notice dated 7 th December 2015, which was received by the Ministry of Labour, Social Security and Services on 9 th December 2015, informing the Ministry that sixty-three positions Page 10 of would be rendered

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redundant. Page 11 of

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19. During cross-examination, however, RW1 acknowledged that the appellant's Parkside Shop, where the respondent had been deployed as Express Shop Manager, continued to operate after the respondent's departure. 20. Upon hearing this matter, the trial court found that the appellant neither complied with the statutory redundancy procedure, nor established a genuine redundancy. It held that the respondent was not given the requisite notice, no selection criteria were disclosed, and the appellant failed to prove that her position had been abolished. Consequently, the court declared substantively unfair the termination and awarded procedurally the and respondent Kshs.1,596,096.00 as compensation together with costs. 21. Aggrieved by the above judgment, the appellant filed the instant appeal through the memorandum of appeal dated 4 th March 2020. There are twelve grounds of appeal in the Memorandum of appeal, summarized into allegations, that the trial judge erred in: i. Finding that the redundancy notices issued to the Ministry of Labour were defective and noncompliant with section 40 of the Employment Act. ii. Holding that the redundancy procedurally unfair. iii. Finding that the respondent's position had not been abolished and that there was no genuine redundancy. Page 12 of process was

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iv. Disregarding the appellant's evidence regarding the abolition of Express Shop positions and the application of selection criteria. v. Concluding that the termination substantively and procedurally unfair. vi. Awarding the respondent the maximum compensation of twelve months' salary and failing to consider the ex-gratia payment in mitigation, resulting in an excessive award. vii. Entering judgment contrary to the evidence on record. was 22. The firm of M/S Hamilton Harrison & Mathews Advocates, filed submissions dated 21st October 2020, on behalf of the appellant, and urged that the redundancy arose from a legitimate restructuring exercise undertaken across its African operations to reduce costs, improve efficiency, and outsource the management of its retail shops. As part of that exercise, sixty-three positions were affected, including the respondent's position of Express Shop Manager, which was abolished and its functions outsourced to a third-party contractor. The appellant maintained that no employee was hired to replace the respondent and that the trial court misapprehended the evidence concerning Kennedy Oluoch, who was not an employee of the appellant, but a contractor engaged through an outsourcing arrangement. 23. The appellant submitted that the trial court erred in concluding that there was no genuine redundancy. Relying on Page 13 of

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the definition of redundancy under the Employment Act and the decision in Kenya Airways Ltd v Aviation & Allied Workers Union Kenya & 3 Others (2014) eKLR, it argued that redundancy occurs where services become superfluous following the abolition of a position and that employers are entitled to restructure their operations to meet business objectives. It contended that the abolition of the respondent's position and the outsourcing of shop operations constituted a valid and lawful redundancy. 24. On procedure, the appellant argued that it substantially complied with section 40 of the Employment Act by issuing a notice dated 7th December 2015 to the Ministry of Labour, notifying it of the intended redundancy affecting approximately sixty-three employees. It maintained that any defect in the manner of service was technical and caused no prejudice. The appellant also contended that because all Express Shop Manager positions were abolished, there was no need to apply a selection criterion, as no employees in that category were retained. Although it acknowledged that the respondent was not personally served with a prior redundancy notice, it argued that the special circumstances of its business, including the sensitivity of customer information and operational concerns, justified that course of action. 25. Regarding the remedies, the appellant submitted that the award of twelve months' salary as compensation was Page 14 of

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manifestly excessive. It argued that the trial court considered irrelevant issues, including the respondent's clean employment record, lack of fault, and outstanding loan obligations, factors which it contended are inherent in redundancy situations and should not aggravate compensation. The appellant further argued that the court failed to give due weight to the ex-gratia payment equivalent to one month's salary and other terminal benefits already paid to the claimant. Relying on various authorities, it urged this Court to reduce or set aside the compensation award. 26. The respondent filed submissions dated 28 th October 2024, through the firm of M/S Prof. Albert Mumma & Company Advocates and urged us to uphold the judgment of the trial court. She submitted that the court correctly found that there was no genuine redundancy, and the redundancy process itself was procedurally unfair. 27. Concerning substantive justification, the respondent argued that the appellant failed to prove that her position had been abolished, as the Parkside Express Shop continued operating after her termination with one Kennedy Oluoch assuming the role and responsibilities she had previously performed. The respondent submitted that the appellant failed to notify the Director of Employment of the abolition of her position as required by law, reinforcing the conclusion that the position had not been rendered redundant. Therefore, the appellant Page 15 of

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failed to discharge its burden of proving a genuine redundancy. 28. On procedure, the respondent urged that the appellant failed to comply with the mandatory requirements of section 40 of the Employment Act. She argued that the redundancy notice was defective because: it was addressed to the Ministry of Labour rather than the local labour officer; did not indicate the effective date of the intended redundancy; and, was not served upon her. The respondent maintained that these statutory requirements were mandatory and could not be excused on grounds that no prejudice was suffered. Further, that the appellant failed to disclose, or apply any objective selection criteria as required under section 40(1) (c) of the Act. 29. The respondent also contended that the appellant's explanation that prior notice could not be issued because of concerns about access to sensitive customer information was an afterthought unsupported by the law. She asserted that statutory notice requirements cannot be waived based on speculative concerns and that failure to comply with the prescribed procedure rendered the termination unfair. 30. Regarding compensation, the respondent submitted that the trial court properly exercised its discretion in awarding the maximum compensation of twelve months' salary. She argued that the court correctly service of over Page 16 of considered her long

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eight years, clean employment record, promotions earned through good performance, her desire to continue in employment, the abrupt nature of the termination, and the financial hardship occasioned by the outstanding loan that was immediately recovered from her terminal dues. The respondent further contended that the ex-gratia payment relied upon by the appellant did not warrant a reduction of compensation in the circumstances. 31. The respondent distinguished the authorities cited by the appellant on compensation, noting that those cases involved employees on fixed-term contracts or materially different circumstances. She maintained that the present case involved a long-serving permanent employee and that the trial Judge had a proper basis for awarding the maximum statutory compensation. 32. The appeal came before us for plenary hearing on 18 th February, 2026 via the electronic platform. Mr. Makori, learned counsel appeared for the appellant, while Professor Mumma, learned Senior counsel was present for the respondent. 33. Mr. Makori relied on his submissions and reiterated briefly that: the restructuring resulted in 63 offices being rendered redundant; Kennedy was outsourced and not recruited; notice was served upon the Ministry of Labour on 7 th December, 2015 and not upon the respondent personally, who was Page 17 of

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released a month later, because she held sensitive customer information and serving her would have compromised the data; and, that the respondent was paid ex gratia over and above the one month pay in lieu of notice. Therefore, the compensation of 12 months was not deserved. 34. Professor Mumma SC also relied on his submissions and added that the reasons given for redundancy were false. He submitted that: in the letter to the Ministry of Labour the appellant said they were restructuring at the regional level, but later changed to say they were outsourcing; the organogram produced in evidence was not signed; no notice was given to the area Labour Officer; the respondent was ambushed with the termination and was not accorded the mandatory consultation; and, that given the manner in which the redundancy relocated from was done after her family in the respondent Mombasa, 12 was month’s compensation was called for. 35. This being the first appeal, our duty as was stated in Kenya Ports Authority v Kuston (Kenya) Limited [2009] 2 EA 212 is as follows: “On a first appeal from the High Court, the Court of Appeal should reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in that respect. Secondly, the responsibility of the court is to Page 18 of

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rule on the evidence on record and not to introduce extraneous matters not dealt with by the parties in the evidence.” 36. With that mandate in mind, we have considered the grounds of appeal and the rival arguments raised in the submissions and distilled two issues for determination as follows: i. Whether the trial court erred in finding that the respondent's termination on account of redundancy was substantively and procedurally unfair, and ii. Whether the trial court properly exercised its discretion in awarding the respondent compensation equivalent to twelve months' salary. 37. The law governing redundancy is principally found in sections 2, 40, 43 and 45 of the Employment Act. Section 2 defines redundancy as the involuntary loss of employment through no fault of the employee, where the employee's services have become superfluous following the abolition of office, job, or occupation. Sections 43 and Section 45 require an employer to prove the reason for termination and that such reason is valid and fair. While section 40 prescribes the mandatory procedural safeguards that must be complied with before an employee's services can be terminated on account of redundancy. 38. The jurisprudence of this Court has consistently held that the legality of redundancy depends on compliance with both the substantive and procedural requirements of the Act, and Page 19 of

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we Page 20 of

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are not alone in this posture. The Court of Appeal of New Zealand in Aoraki Corporations Limited V. Collin Keith McGavin; CA 2 of 1997 [1998] 2 NZLR 278, addressed this issue and held that: “…It is convenient in other termination cases, and essential in redundancy cases, to consider whether the dismissal was substantively justified. Thus, if dismissal is said to be for a cause it may be substantively unjustified in the sense of a cause not being shown or being subject to significant procedural irregularity as to cast doubt upon the outcome…. Redundancy is a special situation. The employees have done no wrong. It is simply that in the circumstances the employer faces, their jobs have disappeared and they are considered surplus to the needs of the business. Where it is decided as a matter of commercial judgment that there are too many employees in the particular area or overall, it is for the employer as a matter of commercial judgment to decide on the strategy to be adopted in the restructuring exercise and what position or positions should be dispensed with in the implementation of that strategy and whether an employee whose job has disappeared should be offered another position elsewhere in the business. It cannot be mandatory for the employer to consult with all potentially affected employees in making any redundancy decision. To impose an absolute requirement of that kind would be inconsistent with the employer’s prima facie right to organize and run its business operation as it sees fit. And Page 21 of

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consultation would often be Page 22 of

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impracticable, particularly where circumstances are seen to require mass redundancies. However, in some circumstances an absence of consultation where consultation would reasonably be expected may cast doubt on the genuineness of the alleged redundancy or its timing. So, too, may a failure to consider any redeployment possibilities.” 39. In the present case, the appellant maintained that it undertook a restructuring exercise affecting sixty-three positions, including that of Express Shop Manager, and that the respondent's duties were subsequently outsourced. Conversely, the respondent maintained that her position continued to exist after her termination and relied on evidence that the Parkside Express Shop remained operational and that one Kennedy Oluoch subsequently performed the same functions. 40. The trial court considered the validity of the reason advanced for the redundancy and held as follows: “The 2nd issue for determination is whether the reason for redundancy was valid. It was the respondent’s case that the respondent reorganized for better efficiency with the consequence that the office held by the claimant was rendered redundant. During cross- examination, the respondent’s witness confirmed that the respondent’s Parkside Shop where the claimant was deployed as the Express Shop Manager was still in operation. The Court has considered that evidence against the email of 25.02.2016 addressed to one Kennedy Olouch, Shop Page 23 of

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Manager, Parkside Shop and Page 24 of

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returns that the claimant has established on a balance of probability that the office held by the claimant in the respondent’s establishment was never abolished or rendered redundant. In any event, it has not been shown that the respondent notified the abolition of the office held by the claimant to the Director of Employment as required under section 77 of the Employment Act, 2007 and that failure should be sufficient evidence that the office was not abolished. Thus, as at the time of termination, the Court returns that the respondent has failed to show that there existed a genuine reason for the termination of the contract of service on account of redundancy.” 41. The central inquiry in this appeal is not whether the appellant business continued operating, but whether the position occupied by the respondent was genuinely abolished. It is settled that an employer is entitled to reorganize its operations for efficiency, including outsourcing functions, provided the restructuring is genuine and not merely a device to disguise an unfair termination. This Court in Kenya Airways Ltd v Aviation & Allied Workers Union Kenya & 3 others [2014] KECA 404 (KLR) explained it as follows: “It is not necessary to consider all the reasons that the learned Judge gave for his decision that the Airline did not act reasonably. What the learned Judge essentially decided was that redundancy was not commercially necessary and that more Page 25 of

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consultation was necessary. This was a wrong test. As long as the employer genuinely believed that there was a redundancy Page 26 of

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situation, any termination was justified and it was not for the court to substitute its business decision of what was reasonable. The Court has no supervisory role. (Emphasis added)”. 42. In the appeal before us, at page 25 of the record, there is an email sent on 25th February 2026 to Kennedy Oluoch from one Peter Ngethe. The email refers to Kennedy Oluoch as the Shop Manager at Parkside Shop Airtel Kenya. During trial, RW1 testified that Kennedy Oluoch was not employed by the appellant. That he was outsourced. However, there was no outsourcing contract on the record to support this argument. There being nothing to support the allegation that Kennedy was outsourced, we find that the appellant failed to prove that the appellant’s position was rendered redundant. 43. Procedural fairness being a vital aspect of redundancy is firmly settled in the jurisprudence of this Court. In Kenya Airways Ltd (supra), the Court adverted to the mandatory requirement to comply with section 40 of the Employment Act is. The Court stated: “Though contractual, employment relations have some sort of statutory underpinnings. Part VI of the Employment Act 2007 in a nutshell outlaws unreasonable or unjustified termination of employment. Though it requires an employee to prove that the termination of his employment was unlawful, in my view, it places a heavier burden of proof upon the employer to justify any Page 27 of

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termination of Page 28 of

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employment. Section 40(1) of the Employment Act, which provides for the implementation of the redundancy decision, provides in mandatory terms that “[a]n employer shall not terminate a contract of service on account of redundancy unless … [he] complies with the … conditions” therein stipulated. 44. The contention before us is whether the requirements in section 40 (1) (b) were satisfied. We are guided by this Court’s decision in Africa Nazarene University v David Mutevu & 103 others [2017] KECA 381 (KLR), where it was stated that: “This Court, differently constituted, in the matter of Thomas De La Rue (K) Ltd vs David Opondo Omutelema [2013] Eklr, had occasion to consider the construction of subsections (a) and (b) to the effect that both required different kinds of notices. It stated as follows: "It is quite clear to us that sections 40 (a) and 40 (b) provide for two different kinds of redundancy notifications depending on whether the employee is or is not a member of a trade union. Where the employee is a member of a union, the notification is to the union and the local labour officer at least one month before the effective redundancy date. Where the employee is not a member of the union, the notification must be in writing and to the employee and the local labour officer. Page 29 of

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Section 40 (b) does not stipulate the notice period as is the case in 40 (a), but in our view, a purposive reading Page 30 of

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and interpretation of the statute would mean the same notice period is required in both situations. We do not see any rational reason why the employee who is not a member of a union should be entitled to a shorter notice." We agree with that construction as well as the observation that subsection (b) says nothing about the length of the notice or the contents. In our view, however, the only difference in both sub-sections is whether an employee is a member of a trade union or not. A proper construction of both subsections would show that the phrase: "...the reasons for, and the extent of, the intended redundancy not less than a month prior to the date of the intended date of termination on account of redundancy." is common to both kinds of employees. So that, whether an employee belongs to a trade union or not, the reasons and period of notice should be spelt out.” 45. In the appeal before us, the appellant urged that it substantially complied with section 40 of the Employment Act by issuing a notice dated 7th December 2015, to the Ministry of Labour. It also acknowledged that it did not serve the respondent with prior redundancy notice because of the exceptional circumstances of its business, including the sensitivity of customer information and operational concerns. On the other hand, the respondent Page 31 of

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asserted that the appellant Page 32 of

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failed to comply with the mandatory requirements of section 40 of the Employment Act. She argued that the redundancy notice was defective because it was addressed to the Ministry of Labour rather than the local labour officer. That it did not indicate the effective date of the intended redundancy, and was not served upon her. 46. Upon evaluating the evidence on the foregoing issue, the trial court held as follows: “In the present case the purported notice to the labour officer was dated 07.12.2015 and delivered on 09.12.2015 as addressed to the Ministry of Labour, Social Security and Services – rather than to the area Labour officer as required in the section and therefore defective. Further, the claimant received the letter of termination on 15.01.2016 without any prior notice. Even if the general letter to the Ministry was a month prior to the claimant’s termination, it is clear that the claimant never received the termination notice as prescribed in section 40 (1) (a) as read with 40 (1) (b) of the Act. Further the Court finds that the notice to the Ministry did not indicate the intended effective date of the redundancy.” 47. This Court considered the question of notice in Kenya Airways Ltd (supra), and rendered itself thus: “Section 40(1) of the Employment Act requires employers contemplating redundancy to give the employees or their trade union notice of at least one month. In addition to providing the parties with an Page 33 of

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opportunity to try and avert or Page 34 of

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minimize terminations resulting from redundancy and mitigate the adverse effects of such terminations, the other objective of a reasonable notice, as was stated in the English case of Williams v. Compare Maxam Ltd11 is: “to enable the union and employees who may be affected to take early steps to inform themselves of the relevant facts, consider possible alternative solutions and, if necessary, find alternative employment in the undertaking or elsewhere.” 48. Having taken into consideration the statutory provisions and the jurisprudence of this Court, we agree with the trial Judge that the appellant failed to surmount the hurdle of procedural fairness as required by law. 49. Turning to the second issue, the appellant submits that the award was excessive and was based on irrelevant considerations. It argues that the learned Judge failed to consider that the respondent's employment was terminated through a legitimate redundancy process and that she had been paid all her terminal dues together with an ex-gratia payment equivalent to one month's salary. In addition, that the trial court improperly relied on factors such as her clean employment record, the outstanding staff loan, and her desire to continue in employment, which are common incidents of redundancy and should not justify the maximum award. The appellant, therefore, urges this Court to interfere Page 35 of

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with the award and either reduce or set it aside. Page 36 of

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50. The respondent, on the other hand, supports the award and submits that the trial court properly exercised its discretion in accordance with section 49(4) of the Employment Act. She argues that the court considered all the relevant factors, including her over eight years of continuous service, her unblemished employment record, the promotions she earned on account of good performance, her legitimate expectation of continued employment, the abrupt and unlawful termination, and the financial hardship occasioned by the recovery of her outstanding staff loan from her terminal benefits. The respondent further contends that the ex-gratia payment did not diminish her statutory entitlement to compensation. It is her plea that this Court forebears from interfering with the award. 51. The award of compensation is governed by sections 49(1) (c) and 49(4) of the Employment Act. Section 49 (1) (c) empowers the court to award compensation not exceeding twelve months' gross salary. While section 49 (4) sets out the factors to be considered, including the employee's length of service, reasonable expectation of continued employment, opportunities for securing alternative employment, conduct of the employee, payments already made by the employer, and any other relevant circumstances. 52. An appellate Court will not interfere with the exercise of discretion unless it is shown misdirected Page 37 of that the trial court

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itself in law, considered irrelevant matters, failed to consider relevant matters, or reached a plainly wrong decision. These principles, stated in Mrao Ltd v First American Bank of Kenya Ltd & 2 others [2003] eKLR, have consistently guided appellate intervention in discretionary decisions. 53. The trial court did evaluate the evidence on remedies and arrived at the following finding, which we quote in extenso: “The 4th issue for determination is whether the claimant is entitled to the remedies as prayed for. The Court makes findings as follows: “a. The claimant prayed for compensation for damages for wrongful dismissal and unfair termination equivalent to 12 months’ salaries being Kshs.133, 088 x 12 making Kshs.1, 596, 096.00. The Court has considered that the claimant never contributed to her predicament; she desired to continue in employment; she had a clean record of service that earned her promotions; she had been placed on permanent and indefinite service in view of her good performance; and, the Court has considered the aggravating factors that she was terminated abruptly and at a time she had an outstanding loan of Kshs.711, 637.05. In view of those factors, the Court returns that the claimant is entitled to the amount claimed for compensation under section 49 of the Act. While allowing the award, the Court has considered the ex- gratia payment made in favour of the claimant of Kshs. 133,008.00 against the annual bonus which was due for half year served but not paid at all and finds that the exPage 38 of

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gratia payment, in Page 39 of the

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circumstances, will not mitigate towards reducing the maximum statutory compensation. b. The claimant prayed for payment in lieu of notice Kshs.266, 016 being 2 months’ salaries. There is no dispute that the parties agreed upon the 2 months’ pay in lieu of the termination notice. The claimant admits that the pay was made and applied to settle the outstanding bank loan. The prayer will fail because otherwise it will amount to double payment. c. The claimant prayed for annual bonus compensation for 2015 – 2016 being Kshs.178,456.00. The claimant’s evidence was that she was due for bonus pay in June 2016 which was based on her performance and the annual targeted maximum bonus being Kshs. 178,456.00. Having been terminated on 15.01.2016, it was submitted that she was entitled to at least half of the bonus. It is clear that the pay was based on performance and profits assessed at the end of the respondent’s financial year being next at end of June 2016. Such assessment did not take place, and the Court reckons that the failure not to compute and award the pro-rate half year bonus has been taken into account in awarding the maximum compensation under section 49 of the Act. Accordingly, the prayer for bonus will be declined. d.The claimant prayed for Kshs.711,637.05 being balance of the loan as at January 2016. It was clear that the same was a credit facility in favour of the claimant payable out of her employment dues. The final redundancy package was applied to pay the loan. It was clear that the respondent was not the Page 40 of

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guarantor of such loan but as the employer had Page 41 of

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undertaken to ensure repayment of the loan out of the claimant’s employment dues or benefits. In such circumstances, the prayer will fail.” 54. Having analyzed and re-evaluated the evidence, we find that the appellant has not demonstrated that the trial Judge acted on wrong principles, or considered irrelevant matters, or failed to consider relevant ones. We find that the trial Judge exercised the discretion conferred upon the court under section 49 judiciously and in accordance with the applicable legal principles. In the premise, we find no basis to interfere with the award of compensation. Consequently, we find no merit in this appeal and dismiss it in its entirety, with costs to the respondent. It is so ordered. Dated and delivered at Nairobi this 25th day of September, 2026 W. KARANJA .......................... ... JUDGE OF APPEAL P. NYAMWEYA .......................... ... JUDGE OF APPEAL L. ACHODE ……………………… JUDGE OF APPEAL I certify that this is a true copy of the Page 42 of

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original Signed DEPUTY REGISTRAR Page 43 of

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