Kimani v Copy Cat Limited (Employment and Labour Relations Cause 1386 of 2018) [2023] KEELRC 2982 (KLR)
The bottom line
#A Kenyan court awarded an employee three months' salary after ruling her employer's redundancy was unfair because the employer couldn't prove valid reasons or fair selection.
What this practically means
#Executive summary
#Key legal issues
#Substantive justification for redundancy
The Respondent failed to prove a valid and fair reason based on operational requirements; it did not prove the alleged market volatility and financial decline or that the Claimant was aware of them
Relying on Kenya Airways v Aviation & Allied Workers Union, the court held that section 40(1) must be read with sections 43, 45 and 47(5) of the Employment Act, requiring the employer to prove a valid, fair reason based on operational requirements and fair procedure. Although the Respondent pleaded market volatility and financial hardship, it adduced no proof of decline in operations, and never explained why only the Claimant's role was targeted.
Selection criteria for redundancy
The selection criteria were not proved; the Respondent produced no list of employees considered alongside the Claimant, so it could not show the criteria were objectively, uniformly and fairly applied
Applying Maraga JA's holding in Kenya Airways and Cargill Kenya Limited v Mwaka, the court reiterated that last-in-first-out is not mandatory but any criteria used must include the section 40(1)(c) factors and be objectively, uniformly and fairly applied. The Respondent's asserted 'last in first out' criterion was not demonstrated by evidence, and the consultative meeting focused only on the Claimant.
Whether the termination was unfair and unlawful
The termination on account of redundancy was unfair and unlawful; judgment was entered for the Claimant with compensatory damages of three months' salary under section 49 of the Employment Act
Having failed on both substantive justification and procedure, the Respondent did not discharge the burden under sections 40, 43 and 47(5). The court awarded compensation equivalent to three months' salary (Kshs 330,000), taking into account the Claimant's service of less than two years and that her other terminal dues had been paid.
Legal principles established
#- Redundancy is a legitimate ground for terminating employment only where the employer proves a valid and fair reason based on operational requirements and a fair procedure, including compliance with section 40 of the Employment Act
- The selection criteria for redundancy must be proved to have been objectively, uniformly and fairly applied, and the employer need not always apply last-in-first-out
Court orders
#- 1.Judgment entered in favour of the Claimant
- 2.Claimant awarded compensatory damages equivalent to 3 months' salary, totalling Kshs 330,000/-
- 3.Costs awarded to the Claimant
- 4.Interest at court rates from the date of judgment until full payment
- Jurisdiction invoked
- Original employment and labour relations jurisdiction under Article 162(2) of the Constitution and the Employment Act (not expressly cited; claim brought under the Employment Act, Constitution and fair labour practices)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kimani v Copy Cat Limited (Employment and Labour Relations Cause 1386 of 2018) [2023] KEELRC 2982 (KLR)", Case Analysis (2023). Employment and Labour Relations Court at Nairobi, Memorandum of Claim dated 3rd August 2018 (number not stated in the judgment text). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2982/eng@2023-11-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.