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Court of AppealDismissednull — the judgment does not state the appeal number (only ELRC Cause No. 975 of 2016 below is named)

Nation Media Group Limited v Munene (Civil Appeal E603 of 2021) [2025] KECA 114 (KLR)

Court of Appeal
24 January 2025
DMD. K. MusingaASAsike-MakhandiaPNP. Nyamweya
5,339 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed employers must genuinely prove a redundancy and follow proper notice procedures, or pay employees up to 12 months' salary in compensation.

What this practically means

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Executive summary

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This is a judgment of the Court of Appeal at Nairobi (Musinga, Asike-Makhandia and Nyamweya, JJAA) dismissing Nation Media Group's appeal against a decision of the Employment and Labour Relations Court at Nairobi (H. Wasilwa J.) in ELRC Cause No. 975 of 2016. The respondent, formerly the Sunday Nation news editor, was declared redundant by letter handed to him on 4 March 2016, the same day his employment ended. The ELRC found the termination unfair and awarded him Kshs 3,844,110/- being 10 months' salary as compensation, while dismissing claims for other redundancy dues. On appeal, the Court restated its duty as a first appellate court and framed two issues: the fairness of the redundancy and the legality of the award. It held that under sections 40, 43 and 45 of the Employment Act the employer bore the burden of proving a genuine redundancy situation and compliance with the statutory procedure; the appellant produced no evidence of the reorganisation relied upon, of the class of employees affected, or of selection criteria, and gave no notice to the employee, union or labour officer. Drawing on Maraga JA's reasoning in Kenya Airways v Aviation & Allied Workers Union and the South African decision in SACTWU v Discreto, the Court affirmed that consultation is imperative and that courts test genuineness and rationality, not commercial wisdom. The termination was unfair both substantively and procedurally. On quantum, the Court held the 10 months' award was reasonable and within section 49(1)(c), compensation being a remedy distinct from terminal dues already paid. The ELRC judgment was upheld in its entirety, the appeal dismissed with costs to the respondent.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the termination of the respondent's employment on account of redundancy was substantively and procedurally unfair
  2. 2.Whether the award of Kshs 3,844,110/- (10 months' salary) as compensation for unfair termination was lawful and justified

Key legal issues

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01

Substantive validity of the redundancy

Holding

The appellant failed to prove valid reasons for the redundancy; no evidence of the reorganisation, the class of employees affected, or the selection criteria was produced

Reasoning

Under section 43(1) of the Employment Act the employer must prove the reasons for termination, failing which the termination is deemed unfair. The redundancy letter alluded to a reorganisation of the editorial department, but no evidence of that reorganisation, of the affected class of employees, or of selection based on seniority, skill, ability and reliability under section 40 was tendered. The evidential burden lay on the employer and was not discharged, so the trial court's finding of no valid grounds could not be faulted.

p. 9
02

Procedural fairness of the redundancy

Holding

Termination effected the same day as the redundancy letter, with no notice to the employee, union or labour officer, was procedurally improper

Reasoning

Section 40 requires written notice of intended redundancy at least a month in advance to the union or employee and the labour officer,eliciting consultation. The respondent was handed the letter and required to leave the office the same day. Following Maraga JA's exposition in Kenya Airways, notice precedes consultation, and consultation is imperative under the Employment Act and Labour Relations Act. The respondent had no opportunity to be heard or mitigate. The termination failed both substantive and procedural tests.

p. 1
03

Quantum of compensation for unfair termination

Holding

The award of 10 months' salary under section 49(1)(c) was reasonable given the manner of termination and within judicial discretion guided by section 49(4)

Reasoning

Section 49(1)(c) permits up to 12 months' gross salary as compensation. The guidelines in section 49(4) were considered; the respondent lost employment without notice in a most cavalier manner. The trial Judge articulated the basis of the award, satisfying the requirement in Ol Pejeta that reasons justify the award. Compensation is discretionary, distinct from terminal dues already paid, so the payment of dues does not enrich the employee unjustly or offset compensation.

p. 12

Legal principles established

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  • An employer asserting redundancy bears the burden of demonstrating a genuine redundancy situation and compliance with section 40 of the Employment Act, including prior notice to the employee/union and the labour officer and the criteria of selection
  • A redundancy declared and effected on the same day, without notice or consultation, is procedurally unfair; courts do not substitute their judgment for the employer's business decision but must be satisfied the decision was genuine, rational and lawfully arrived at
  • Compensation for unfair termination under section 49 of the Employment Act is a remedy separate from and additional to terminal dues, and terminal dues do not offset it

Court orders

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  1. 1.The judgment dated 10/11 November 2020 of the ELRC (H. Wasilwa J.) in ELRC Cause No. 975 of 2016 is upheld in its entirety
  2. 2.The appeal is dismissed with costs to the respondent

The bench

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One judgment of the whole court — no separate or dissenting opinions.

DM
majority
AS
majority
PN
majority
On appeal from
Employment and Labour Relations Court at Nairobi
ELRC Cause No. 975 of 2016
Jurisdiction invoked
First appellate jurisdiction over the Employment and Labour Relations Court (the judgment does not cite the specific constitutional/statutory provision)

Relief refused

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Appellant's prayer that the award of 10 months' salary compensation be set aside or reduced (to 2 months) as excessive and amounting to unjust enrichment

The award was within section 49(1)(c) of the Employment Act, the trial Judge stated the basis of the award, and compensation for unfair termination is separate and distinct from terminal dues already paid

p. 13

Costs

The appeal is dismissed with costs to the respondent

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

In the absence of this crucial evidence, which evidence ought to have come from the appellant under section 43 of the Act, we have no basis for faulting the learned Judge of the ELRC in finding that the appellant failed to show that there existed valid grounds to declare the respondent redundant.
p. 9Employer's burden of proving a genuine redundancy
It is necessary to underscore that the reason why a redundancy process must be procedurally fair and substantively justifiable is because it is an involuntary termination of employment that occurs through no fault or mistake of an employee.
p. 11Rationale for procedural fairness in redundancy
the remedy of compensation for unfair termination is separate and distinct from any terminal dues that were due to the respondent as a result of the termination, whether by redundancy or otherwise
p. 13Compensation distinct from terminal dues
The judgment dated 10 November 2020 by the Employment and Labour Relations Court at Nairobi (H. Wasilwa J.) in ELRC Cause No. 975 of 2016 is therefore upheld in its entirety, and this appeal is accordingly dismissed with costs to the respondent.
p. 13Final orders — disposition

Issues in the judgment

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minor

Internal inconsistency in the date of the trial judgment: the judgment elsewhere records it as delivered on 11 November 2020

minor

The memorandum of appeal is dated 20 August 2021 but the appeal number before the Court of Appeal is nowhere stated in the judgment

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Nation Media Group Limited v Munene (Civil Appeal E603 of 2021) [2025] KECA 114 (KLR)", Case Analysis (2025). null — the judgment does not state the appeal number (only ELRC Cause No. 975 of 2016 below is named). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/114/eng@2025-01-24

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.