Josephine M Ndung’u & 6 others v Plan International Inc
The bottom line
#Kenya's Court of Appeal confirmed that employers can carry out redundancies for genuine business reasons as long as they follow the Employment Act's strict procedures.
What this practically means
#Executive summary
#Key legal issues
#Whether the redundancy was substantively justified despite alleged irregular procurement of the restructuring consultants
The redundancy was substantially justified; internal procurement imperfections did not invalidate the restructuring where valid operational reasons existed.
The Court acknowledged procedural concerns around the sourcing of Active Engagement Consultants but held that the determinative question under sections 40, 43 and 45 of the Employment Act is whether valid operational reasons existed and whether the mandatory procedural safeguards were observed. The respondent established operational inefficiencies, bloated management and reduced donor funding, so the procedural shortcomings did not displace the justification for the redundancy.
Whether the notice requirements of section 40(1)(b) of the Employment Act were complied with
The respondent complied; notices issued on 30th June and 3rd July 2014 preceded the Labour Office notification of 7th July 2014 and the September 2014 terminations.
Relying on Africa Nazarene University v David Mutevu, the Court noted that the one-month notice requirement applies to both unionized and non-unionized employees. Redundancy notices were issued to the appellants on 30th June and 3rd July 2014, the Labour Office was notified on 7th July 2014, and terminations took effect in September 2014, satisfying section 40(1)(b).
Whether the selection criteria under section 40(1)(c) of the Employment Act were violated
The criteria were inapplicable because most positions were abolished; the appellants declined opportunities to apply for restructured positions.
Most of the appellants' positions were abolished outright, with only the 5th appellant's position downsized. The new and downsized positions were advertised and the appellants were advised to apply but declined, some resigning instead. The statutory selection criteria for choosing among employees of a particular class were therefore not triggered, and the section was not contravened.
Whether the appellants proved discrimination under Article 27 of the Constitution and section 5 of the Employment Act
No prima facie case of discrimination was established on a prohibited ground, so the burden never shifted to the respondent under section 5(7).
The appellants did not identify any prohibited ground under Article 27 or section 5 of the Act; their complaint was essentially of unfair targeting. The evidence showed they received the same notices, memoranda and opportunity to apply for reorganized positions as other staff. Allegations that juniors filled some positions did not establish discrimination absent proof of prohibited or arbitrary considerations.
Legal principles established
#- An employer retains the managerial prerogative to reorganize operations and restructure its workforce, provided the law is complied with; a court will not substitute its view of the commercial wisdom of a restructuring.
- Internal procurement irregularities in the process leading to a restructuring do not invalidate a redundancy unless they invalidate the statutory justification for it.
- The selection criteria in section 40(1)(c) of the Employment Act apply only where there are employees of a particular class to be selected; where positions are abolished and employees decline to reapply for restructured positions, the criteria are not contravened.
- Workplace dissatisfaction or managerial disagreement does not, without more, amount to discrimination in law; unequal treatment must be founded on prohibited considerations.
Court orders
#- 1.The appeal is dismissed with costs to the respondent
- On appeal from
- Employment and Labour Relations Court, Nairobi
- Jurisdiction invoked
- First appeal to the Court of Appeal under Rule 31(1) of the Court of Appeal Rules, 2022
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Josephine M Ndung’u & 6 others v Plan International Inc", Case Analysis (2026). Civil Appeal (Nairobi), memorandum of appeal dated 17th February 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1287/eng@2026-07-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.