Macharia v Registered Trustees of the Sisters of Mercy (Kenya) Mater Misericordiae Hospital (Cause 650 of 2020) [2025] KEELRC 1454 (KLR)
The bottom line
#A Kenyan court found an employee's 'redundancy' dismissal was a disguised disciplinary sacking and awarded him over Kshs. 8.3 million.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether termination of the Claimant's contract of employment by the Respondent was illegal, unconstitutional, unprocedural and contrary to the Employment Act 2007
- 2.Whether the Claimant is entitled to the remedy of reinstatement
- 3.Whether the Claimant is entitled to the alternative remedies under paragraph 23 [iii] of the Statement of Claim
Key legal issues
#Whether there was a genuine redundancy situation
No - the alleged overlap of roles was ingrained in the contract authored by the Respondent, and redundancy was declared because of the Claimant's alleged rudeness, indicating an ulterior purpose
Sister Mary Gitau's evidence showed the position was declared redundant because the Claimant was found rude and refused to take responsibility - a fault-based ground inconsistent with the statutory definition of redundancy. The alleged duplication of the Claimant's role with the CEO's was inherent in the contract drafted by the Respondent itself since 2018, and other holders of the position had preceded him without redundancy. The Court concluded the redundancy was a colourable exercise arising from a failed disciplinary process.
Whether the Respondent complied with the procedural demands of Section 40 of the Employment Act
No - there was no consultation, no prior notice of intended redundancy, and no redundancy benefits paid before termination
The Claimant went on leave unaware of any redundancy plan and was presented with a fait accompli decision made by the Trustees in his absence. There was no record of consultations on redundancy despite his senior rank as principal assistant to the CEO. No redundancy benefits were paid before termination. The Court applied the German School Society and Mugford authorities on genuine consultation and found the exercise fell far short of Section 40.
Whether the Claimant's e-mail of 8th July 2020 on governance issues was relevant to the termination
No - the Claimant was not disciplined over the e-mail and the termination was on the sole ground of redundancy
Although the Court found the Claimant went overboard in copying allegations of misgovernance and immorality to Sisters in Ireland with no supervisory role, the dispute revolved around Section 40 of the Employment Act. The Respondent's own case was that termination was on account of redundancy, not disciplinary issues. The e-mail therefore had no bearing on the reason justifying termination and the Cause did not stand or fall on it.
Quantum of remedies for the unfair termination
One month's notice, 15 days' severance per year for 2 complete years, outstanding 28 days' leave, and 5 months' salary in compensation; reinstatement and gratuity refused
The Respondent had offered but never paid notice pay and severance. The Claimant worked 2 ½ years and did not contribute to the termination; he had mitigated loss through temporary teaching engagements and had already been awarded severance, notice and leave, so compensation was limited to the equivalent of 5 months' salary. Reinstatement was not practicable after over 4 years, and gratuity was not separately justified.
Legal principles established
#- Redundancy is a no-fault mode of termination; an employee cannot be declared redundant on account of fault such as rudeness or refusal to take responsibility
- Redundancy declared for a collateral purpose of getting rid of an employee is a colourable exercise
- Consultation on redundancy must be genuine and must precede the decision; a fait accompli notice does not satisfy Section 40 of the Employment Act
Court orders
#- 1.It is declared that termination of the Claimant's contract by the Respondent was unfair, unlawful and unconstitutional
- 2.The Respondent shall pay to the Claimant notice at Kshs. 1,050,000; severance at Kshs. 1,050,000; leave at Kshs. 980,000; and compensation for unfair termination equivalent of 5 months' salary at Kshs. 5,250,000 - total Kshs. 8,330,000
- 3.Certificate of Service to issue
- 4.Costs to the Claimant
- 5.Interest allowed at court rate, from the date of Judgment, till payment is made in full
- 6.The Deputy-Registrar is directed to oversee a clean-up of the file, as soon as it is reverted to the Court in Nairobi
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- First-instance employment and labour relations dispute under the Employment Act 2007 (Article 47 of the Constitution and the Fair Administrative Action Act cited on consultation)
Relief refused
#Reinstatement
Not practicable or reasonable, the Claimant having left employment over 4 years earlier
Gratuity at Kshs. 1,890,000
Not established; terminal benefits already awarded under Section 40[1] of the Employment Act and the contract did not justify a separate gratuity award
Costs
Costs to the Claimant
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
It is declared that termination of the Claimant's contract by the Respondent, was unfair, unlawful and unconstitutional.
The Respondent shall pay to the Claimant: notice at Kshs. 1,050,000; severance at Kshs. 1,050,000; leave at Kshs. 980,000; and compensation for unfair termination equivalent of 5 months' salary at Kshs. 5,250,000 – total Kshs. 8,330,000.
the Court held that redundancy is a colourable exercise, an ornamental falsehood, if done for a collateral purpose of getting rid of an Employee.
Consultation on redundancy, must be a reality, not a charade.
Redundancy is described under Section 2 of the Employment Act 2007, as the loss of employment, occupation, job or career by involuntary means, through no fault of an Employee.
The order of reinstatement is not practicable, reasonable or valid under the law, the Claimant having left employment over 4 years ago.
The Deputy-Registrar is hereby directed to oversee a clean-up of the file, as soon as it is reverted to the Court in Nairobi, so as to refiect a true and accurate record of the dispute.
Issues in the judgment
#The judgment does not state its own case number or neutral citation; the file history references pleadings from unrelated disputes misplaced in the physical court file
Internal inconsistency on the date of the Trustees' meeting declaring redundancy - pleaded and found at one point as 21st August 2020, elsewhere as 31st August 2020
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Macharia v Registered Trustees of the Sisters of Mercy (Kenya) Mater Misericordiae Hospital (Cause 650 of 2020) [2025] KEELRC 1454 (KLR)", Case Analysis (2025). null (not stated in the judgment as provided). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1454/eng@2025-05-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.