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Court of AppealDismissedCivil Appeal E072 of 2021

Flamingo Horticulture (K) Ltd v Njoroge

Court of Appeal
25 September 2026
7,276 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Court of Appeal at Nakuru (Mativo, Kairaria and Hassan, JJA) dismissed both the employer's appeal and the employee's cross-appeal, affirming in full the ELRC judgment (Wasilwa, J.) which had found that the summary termination of a security guard on redundancy grounds while on maternity leave was procedurally unfair and discriminatory. The central issue was whether the letter of 27th July 2016, which communicated termination and offered terminal dues, satisfied Section 40(1)(b) of the Employment Act. Applying its own precedents, including Ecobank v Ngina, Barclays Bank v Gladys Muthoni, German School Society v Ohany and Thomas De La Rue v Omutelema, the Court held that two distinct notices are required: a notice of intended redundancy issued at least one month in advance to the employee and the Labour Officer, and a notice of termination or pay in lieu. By purposive interpretation, non-unionized employees enjoy the same one-month minimum notice. Payment in lieu of notice cannot cure the omission of the statutory notice, which serves a non-monetary, consultative purpose. Consultation is implied in Section 40(1) and mandated by Article 47 and the Fair Administrative Action Act; its absence rendered the redundancy null and void. The Court also held that a discharge voucher does not estop statutory claims, that compensation for unfair redundancy and damages for discrimination are distinct heads not amounting to double compensation, and that the employer failed to prove the redundancy was objective and non-discriminatory. Each party was ordered to bear its own costs.

Questions the Court framed

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

  1. 1.Whether the appellant served the respondent with a valid redundancy notice under Section 40 of the Employment Act
  2. 2.Whether the failure to issue a notice of intended redundancy was cured by payment of one month's salary in lieu of notice
  3. 3.Whether consultation was required before the redundancy and whether its absence rendered the termination procedurally unfair
  4. 4.Whether the trial court erred in awarding double compensation for unfair redundancy and discrimination
  5. 5.Whether the termination was discriminatory on account of the respondent's pregnancy and maternity leave
  6. 6.Whether the discharge voucher estopped the respondent from pursuing further claims
  7. 7.Whether the cross-appeal for enhanced general damages of Kshs. 3,000,000/- should be allowed

Key legal issues

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01

Validity of the redundancy notice under Section 40(1)(b) of the Employment Act

Holding

The appellant never served the 30 days' notice of intended redundancy; the letter of 27th July 2016 was a final termination, not a notice, and payment in lieu of notice did not cure the omission.

Reasoning

The Court applied its prior decisions holding that two separate notices are required: a notice of intended redundancy issued at least one month prior to the employee and Labour Officer, and a notice of termination or pay in lieu. The statutory notice initiates consultation and cannot be paid off. Skipping it is an independent defect rendering the exit process void.

p. 8
02

Mandatory consultation before redundancy

Holding

Consultation is implied in Section 40(1) and required by Article 47 and the Fair Administrative Action Act; its absence rendered the termination procedurally unfair.

Reasoning

Relying on German School Society and Kenya Airways, the Court held consultation is implicit in fair labour practices; without individual notice, meaningful consultation cannot occur and the process becomes a cosmetic charade. No evidence of consultations was presented before the trial judge, so the redundancy was procedurally unfair.

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Discrimination on account of pregnancy

Holding

The appellant failed to discharge the burden of proving the redundancy was strictly objective and non-discriminatory; the trial court's discrimination finding was not disturbed.

Reasoning

The Court set out the elements of a discrimination claim and the shifting burden: once a prima facie case is established, the employer must prove the termination was justified by operational requirements independent of the protected status. The appellant's explanation was thin and guarded, failing the two-tier causation test, so the discrimination finding stood.

p. 12
04

Double compensation

Holding

Compensation for unfair redundancy and general damages for discrimination are distinct remedies for distinct breaches; no double compensation arose.

Reasoning

Drawing on South African authority (Odendaal, ARB Electrical Wholesalers, South African Airways v V), the Court held that a single dismissal may breach two separate statutory obligations, permitting compensation under the unfair dismissal framework and damages for discrimination. The two awards here addressed different heads and were sustainable.

p. 10
05

Estoppel by discharge voucher

Holding

Signing a discharge voucher does not automatically bar claims for an unprocedural termination.

Reasoning

The Court held that a full and final settlement voucher cannot be used to bypass mandatory procedural requirements under Sections 40 and 41 of the Employment Act, following Thomas De La Rue v Omutelema. The estoppel argument was rejected as going no further than being attractive.

p. 9

Legal principles established

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  • Non-unionized employees are entitled to the same minimum one-month written notice of intended redundancy as unionized employees, by purposive interpretation of Section 40(1)(b) of the Employment Act.
  • Failure to issue a redundancy notice cannot be cured by payment of one month's salary in lieu of notice; the statutory notice serves a distinct non-monetary purpose.
  • Consultation before redundancy is implied by Section 40(1)(a) and (b) of the Employment Act and required by Article 47 of the Constitution and the Fair Administrative Action Act, even for non-unionized employees.
  • A discharge voucher or full and final settlement cannot absolve an employer from mandatory statutory obligations in a redundancy.
  • Compensation for unfair redundancy and general damages for discrimination are distinct heads of damages; awarding both is not double compensation.

Court orders

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  1. 1.The appeal is dismissed
  2. 2.The notice of cross-appeal is dismissed
  3. 3.Each party shall bear its own costs
  4. 4.The trial court's findings are affirmed

The bench

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

majority
majority
majority
On appeal from
Employment and Labour Relations Court at Nakuru
ELRC Petition No. E009 of 2019
Jurisdiction invoked
First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction (Employment and Labour Relations Court Act/Constitution Article 164)

Relief refused

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Appellant's prayer to set aside the trial judgment and dismiss the respondent's suit

Redundancy was procedurally unfair for want of notice and consultation; discrimination finding upheld

p. 12

Respondent's cross-appeal for enhanced general damages of Kshs. 3,000,000/-

No basis to enhance the trial court's award of Kshs. 1,000,000/-

p. 12

Costs

Each party shall bear its own costs

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.

The upshot of the above is that both the appeal and the notice of cross appeal are devoid of merit and are hereby dismissed. Since both parties have failed in their respective claims, each party shall bear its own costs. For avoidance of doubt, we hereby arm the trial court's ndings.
p. 12Final orders - dismissal of appeal and cross-appeal, costs, affirmation
Under the law, failure to issue a redundancy notice cannot be cured by payment of a one month's salary in lieu of notice.
p. 8Non-curable defect in redundancy notice
Even where an employee is not a member of a union, consultation before redundancy is a requirement.
p. 6Mandatory consultation for non-unionized employees
The omission to issue the notice to the respondent and the absence of the consultations rendered the purported redundancy null and void for all purposes.
p. 9Consequence of procedural defects
These are two distinct heads of damages.
p. 10No double compensation between unfair redundancy compensation and discrimination damages

Issues in the judgment

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minor

Inconsistent dates for the termination letter: 27th July 2016 in most of the judgment but 27th July 2018 in the discussion of counsel's submissions and paragraph 33.

minor

The respondent is described as 'previously known as Finlays Horticulture Kenya Limited', which is the appellant's former name, not the respondent's.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Flamingo Horticulture (K) Ltd v Njoroge", Case Analysis (2026). Civil Appeal E072 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1791/eng@2026-09-25

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