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ELRCPartially AllowedELRC Cause filed 22nd July 2021 (number not indicated in judgment)

Mwikali v Flame Tree Africa Limited (Cause E6-7 of 2021) [2025] KEELRC 1809 (KLR)

Employment and Labour Relations Court
19 June 2025
6,034 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled that giving a worker redundancy notice and termination on the same day is unlawful, awarding her nearly Kshs 1 million.

What this practically means

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Executive summary

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The Claimant, formerly an Accounts Assistant with the Respondent, was served a notice of intended redundancy and a termination notice both dated 18th March 2021, the same day she was required to hand over all company property. She sued for 24 months' compensation, general damages for unfair labour practices, 62 leave days' pay, salary for April/May 2021, 12 months' acting allowance as Finance Manager, and return of personal effects. The Respondent maintained that it complied with Section 40 of the Employment Act, that the redundancy arose from genuine operational restructuring affecting 20 staff, that the Claimant absconded after rejecting the notice, and that all terminal dues were paid. The court found that although the Respondent notified the labour office on 16th February 2021, the Claimant was given the notice and the termination letter on the same day and ordered to surrender company property immediately, which negated the statutory one-month notice and foreclosed consultations, contrary to the process laid down in the Kenya Airways case. It held the redundancy procedurally unfair and awarded 8 months' salary (Kshs 908,528) as compensation, 23 days' leave pay (Kshs 87,067), totalling Kshs 995,595 less statutory deductions, with an order for return of her personal effects. The claims for acting allowance and the larger reliefs failed for want of proof. The Respondent was ordered to pay costs with interest from the date of judgment.

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 Claimant's employment on account of redundancy was lawful and fair (substantively and procedurally)
  2. 2.Whether the Claimant is entitled to acting allowance for the position of Finance Manager
  3. 3.Whether the Claimant is entitled to return of her personal effects and the other reliefs claimed

Key legal issues

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01

Whether the redundancy of the Claimant complied with Section 40 of the Employment Act

Holding

The redundancy was procedurally unfair: the Claimant was given the notice of intended redundancy and the termination notice on the same day (18th March 2021) and asked to hand over company property immediately, leaving no genuine one-month notice period or room for consultation.

Reasoning

Section 40 requires at least one month's notice to the employee and the labour officer, allowing consultations. The letters of intended redundancy and termination were both dated 18th March 2021, and the Claimant was told to hand over all company property by close of business that same day. The court found the contents of the letters betrayed that the Respondent never intended to keep her beyond 18th March 2021, denying her consultations and a soft landing.

p. 11
02

Whether the termination was substantively justified

Holding

The court found the redundancy unfair and unjustified principally for want of due process; DW1 conceded there were no documents showing a restructuring, and the Claimant alone among Accounts Assistants was declared redundant.

Reasoning

The Respondent's witness DW1 testified she had no documents evidencing the alleged restructuring, and that the Claimant was declared redundant due to poor performance among four Accounts Assistants. The court did not rest its finding on substantive justification alone but on the failure of procedure, holding that with no due process the Claimant succeeded under Section 45(2).

p. 11
03

Whether the Claimant was entitled to acting allowance as Finance Manager

Holding

The claim failed for lack of proof of the alleged verbal acting appointment or performance of the full duties of the role.

Reasoning

The Claimant asserted she was appointed acting Finance Manager orally in March 2020, but called no witness to corroborate this. The Respondent's witnesses, including DW4, denied any verbal appointment for such a senior position and stated the Finance Manager's duties were distributed across the department. The court accepted the Respondent's submission that without evidence of appointment or performance of the full scope of duties with the employer's knowledge and approval, the claim could not stand.

p. 10
04

Entitlement to accrued leave days and return of personal effects

Holding

The Claimant was awarded 23 days' leave outstanding and an order for return of her personal effects.

Reasoning

The court awarded leave pay computed at 23/30 of monthly salary of Kshs 113,566. On personal effects, DW3 testified he delivered a water bottle and A4 mirror to the Claimant's home, but the court still directed return of the items as pleaded. The other reliefs, including general damages for unfair labour practices and salary for April/May 2021, were not granted.

p. 12

Legal principles established

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  • A redundancy notice that requires an employee to hand over all company property on the very day of notice is not a real one-month notice and denies the employee the consultation window required by Section 40 of the Employment Act.
  • Where procedural fairness is absent, termination on account of redundancy is unfair under Section 45(2) of the Employment Act.

Court orders

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  1. 1.Award of 8 months' salary as compensation for unfair redundancy (8 x Kshs 113,566 = Kshs 908,528)
  2. 2.Award of 23 days' leave outstanding (23/30 x Kshs 113,566 = Kshs 87,067)
  3. 3.Total award of Kshs 995,595 less statutory deductions
  4. 4.Direction to the Respondent to return the Claimant's personal effects and items as pleaded
  5. 5.Respondent to pay costs of the suit plus interest at court rates with effect from the date of judgment

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Court Act and Article 162(2) of the Constitution (employment and labour relations dispute)

Relief refused

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General damages for unfair labour practices (24 months) of Kshs 2,725,584

Not awarded; the court confined itself to compensation for the unfair redundancy and outstanding leave

Compensation for unfair termination beyond 8 months (sought 24 months, Kshs 2,725,584)

Court found 8 months' salary adequate given the procedural unfairness

p. 11

Compensation for 62 leave days (Kshs 270,811)

Only 23 leave days found outstanding

p. 12

Salary for the period between April/May 2021 (Kshs 113,566)

Not awarded; Respondent contended she absconded duty and was paid up to 17th April 2021

Acting allowance for the position of Finance Manager (12 months) of Kshs 6,248,508

Not proven; the Claimant's assertion of a verbal acting appointment was unsubstantiated and contradicted by the Respondent's witnesses

p. 10

Costs

The Respondent to pay the costs of the suit plus interest at court rates with effect from the date of the judgment.

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.

Because of the lapse in procedural fairness, it is my finding that the redundancy was unfair and unjustified.
p. 11Unfairness of the redundancy
With the respondents asking the claimant to hand over all properties of the respondents on the day of notice, that did not give room for consultation.
p. 11Section 40 notice and consultation
given the unfairness of being bundled out of ofice without any proper notice period and denying her an opportunity to consult for a soft landing, I find 8 months’ salary as compensation for unfair redundancy is appropriate
p. 11Quantum of compensation
I also award the claimant her 23 days leave outstanding as at 16/3/23= 23/30 x 113,566= Kshs 87,067/-.
p. 12Leave award
The respondents will pay costs of this suit plus interest at court rates with efiect from the date of this judgment.
p. 12Costs and interest (final orders)

Issues in the judgment

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minor

Internal date inconsistencies: the Claimant pleads acting duties 'until 18th March 2018' (an apparent typographical error for 2021), and the award paragraph computes leave 'as at 16/3/23' although termination was in 2021 and judgment in 2025.

minor

Conflicting terminal dues figures within the judgment (Kshs 384,012 pleaded by Respondent vs Kshs 314,884 in the Claimant's testimony).

minor

Conflicting performance appraisal evidence: the Claimant cites a 2019 appraisal of 'A- highly commendable' while DW1 testified the Claimant was appraised 'C- developing' with poor performance; the judgment does not resolve this expressly.

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, "Mwikali v Flame Tree Africa Limited (Cause E6-7 of 2021) [2025] KEELRC 1809 (KLR)", Case Analysis (2025). ELRC Cause filed 22nd July 2021 (number not indicated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1809/eng@2025-06-19

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