United Millers Limited v Okusimba (Appeal E076 of 2024) [2025] KEELRC 1860 (KLR)
The bottom line
#An employer who merely scales down operations—rather than fully closing—must still follow the redundancy selection criteria and consult affected employees.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Trial Court misapprehended the facts and wrongly interpreted and applied Section 40[1][c] of the Employment Act
- 2.Whether the closure of the Appellant's plant at Nakuru rendered the selection criteria under Section 40[1][c] inapplicable
- 3.Whether the Trial Court's judgment finding unfair termination should be disturbed
Key legal issues
#Whether closure of business exempts an employer from establishing selection criteria under Section 40[1][c] of the Employment Act
The exemption did not apply because the evidence did not establish closure of the Nakuru plant; only scaling down and reduced operations were shown
The Memo of 3rd August 2021 announced scaling down of operations for 60 days with a skeleton manpower retained and assurance of possible resumption. The second Memo of 6th October 2021 referred to 'reduced operations' and 'restructuring', not closure. Skeleton manpower was not shown to have been removed. Section 40para 1[c] therefore ought to have been applied in selecting employees for redundancy.
Whether the lack of consultation rendered the redundancy procedurally unfair
Yes; the Appellant made unilateral decisions without consulting Employees, contrary to the redundancy consultation principle
Employees were sent home under a 60-day scaling-down exercise, then issued redundancy notices without consultation, and it was unknown how the Respondent was selected while the refinery remained operational. The absence of consultation caused restiveness and industrial action. The Court of Appeal principle in the German School Society case underscored the duty to consult.
Whether the Trial Court misapprehended facts or misapplied the law
No; the Trial Court correctly evaluated the facts and applied Section 40para 1 of the Employment Act
The Trial Court found at paragraph 8 of its Judgment that the refinery was not closed down and that some machines were probably left running, retaining skeleton manpower. The Appellant failed to demonstrate any misapprehension of evidence or misapplication of law justifying appellate interference with the award of 6 months' salary compensation.
Legal principles established
#- Selection criteria under Section 40para 1[c] of the Employment Act apply where a workplace is scaled down or restructured but not fully closed
- Redundancy is a process requiring consultation with Employees at every stage, not unilateral decisions communicated by notices and memos
Court orders
#- 1.The Appeal is declined.
- 2.Costs of the Appeal to the Respondent.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Trial Court (magistrates' court, not named in judgment)
- not stated
- Jurisdiction invoked
- First appellate jurisdiction of the Employment and Labour Relations Court over the Trial Court judgment (not expressly cited in the judgment)
Relief refused
#Appellant's proposal that the Appeal be allowed and the Trial Court Judgment substituted with an Order dismissing the Claim with costs of the Trial and the Appeal
The evidence did not support closure of the plant; the Trial Court correctly found the refinery was not shut down and Section 40[1][c] applied
Costs
Costs of the Appeal to the Respondent.
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.
The evidence on record does not support the position that the Appellant closed down its plant at Nakuru, therefore rendering selection criteria under Section 40 [1][c] of the Employment Act, inapplicable.
Redundancy was a process with its origin in August 2021, rather than an event that took place in October 2021, which called on the Appellant to consult the Employees at every turn.
The Appellant made unilateral decisions, communicated to the Respondent as notices and internal memos. There was no consultation.
It is ordered : a. The Appeal is declined. b. Costs of the Appeal to the Respondent.
Issues in the judgment
#Date inconsistency: mention recorded as 30th April 2024, yet the Memorandum of Appeal is dated 19th November 2024 and the Trial Court Judgment was delivered on 6th November 2024
Names of the parties and the specific Trial Court are not stated in the body of the judgment extracted; the case title and case number cannot be confirmed from the text
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "United Millers Limited v Okusimba (Appeal E076 of 2024) [2025] KEELRC 1860 (KLR)", Case Analysis (2025). Memorandum of Appeal dated 19th November 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1860/eng@2025-06-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.