Kenya Uinion of Commercial Food and Allied Workers v Bowip Agencies Limited (Cause E016 of 2025) [2025] KEELRC 2243 (KLR)
The bottom line
#A Kenyan court ruled a worker's redundancy was unfair because the employer skipped required consultations and notices, awarding over Kshs.433,000 plus costs.
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 grievant's employment on account of redundancy was unfair.
- 2.Whether the claimant is entitled to the reliefs sought.
Key legal issues
#Locus standi of the union
The union had standing; it established a prima facie case that the grievant was its member, and the respondent adduced no evidence to controvert the membership card.
Union membership is a question of fact and the right to join a union is individual, not corporate. The respondent's claim of ignorance of the union was undermined by its participation in conciliation proceedings and its failure to raise the point preliminarily. No verifiable evidence was availed to controvert the membership card on record.
Substantive justification for the redundancy
The respondent failed to prove a justifiable basis; the reasons for and extent of the redundancy were not substantiated.
The notice of termination on account of redundancy lacked sufficient detail on workforce numbers, employees affected, revenue decline and optimal workforce. No organogram or detailed evidence of the financial challenges or loss of distributorship was availed. Paragraphs 3 and 4 of the notice lacked supportive and verifiable evidence.
Procedural compliance with Section 40(1) of the Employment Act
The notice was ineffectual - no proof it was sent to the local labour office, and no selection criteria were demonstrated.
The respondent did not avail a copy of any notice forwarded to the local labour officer or proof of receipt. It also provided no documentary evidence of the criteria used to select the grievant, contrary to Section 40(1)(c) which prescribes seniority, skill, ability and reliability.
Pre-redundancy consultations
No meaningful consultations were proved; consultations are implied by Section 40(1)(a) and (b).
Although the internal memo promised consultations, the respondent provided no evidence that any consultations took place, and RW1 adduced none. Following Barclays Bank/Gladys Muthoni and Cargill Kenya, consultation must be real, not cosmetic, in line with Article 41 of the Constitution and ILO standards.
Reliefs
Reinstatement declined; compensation of 4 months' gross salary, salary, notice pay, 30 untaken leave days and severance pay at 11 years awarded, plus certificate of service and costs.
The unfair redundancy transitioned to unfair termination under Section 45, attracting compensation under Section 49(1)(c). Factors considered: 11 years' service, blamelessness, wish to continue, no appeal, practicability of reinstatement, and the bar on specific performance of personal service contracts. Leave records from both sides were untruthful, so 30 days was awarded.
Legal principles established
#- A union derives its standing to represent grievants from the grievants' membership; union membership is a question of fact and the right to join a union is individual, not corporate.
- A redundancy must be both substantively justifiable and procedurally fair, and the employer bears the burden of proving justification and fairness.
- A notice of redundancy under Section 40(1)(b) of the Employment Act is ineffectual if not sent to the employee and the local labour officer at least one month before the redundancy date, or if it does not set out the reasons for and extent of the redundancy.
- Meaningful consultation before redundancy is implied in Section 40(1)(a) and (b) of the Employment Act, though not expressly provided for.
- Reinstatement is a discretionary remedy to be exercised judicially in light of Section 49(4) factors, and specific performance is generally unavailable in contracts of personal service absent exceptional circumstances.
Court orders
#- 1.Salary for up to 27th July 2024, Kshs.31,500.00
- 2.Salary in lieu of notice Kshs.35,000.00
- 3.Untaken leave days Kshs.35,000.00
- 4.Severance pay Kshs.192,000.00
- 5.Equivalent of 4 months salary Kshs.140,000.00 (total Kshs.433,500.00)
- 6.Certificate of service
- 7.Reimbursement of the claimant's costs of Kshs.20,000.00
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original jurisdiction under the Employment and Labour Relations Court Act, Section 12 (3)(vii) read with the Employment Act (Sections 40, 45, 49 and 51)
Relief refused
#Reinstatement (or alternatively, the prayer for reinstatement)
Claimant did not demonstrate exceptional or unique circumstances justifying specific performance of a contract of personal service; position not proved to be vacant.
Unrefunded parking fee of Kshs.2,560
No evidence adduced in support of the claim and it is absent from the final orders.
Claimed severance pay of Kshs.262,500
Awarded at Kshs.192,000.00 based on 11 years rather than 13 years of service.
Costs
Reimbursement of the claimant's costs of Kshs.20,000.00
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.
In a nutshell, the purported redundancy transitioned to an unfair and unlawful termination of the grievant's employment within the meaning of section 45 of the Employment Act, for which the claimant is entitled to compensation under section 49 (1)(c) of the Employment Act.
The upshot of the foregoing is that Judgment is entered in favour of the Claimant against the Respondent in the following terms
Reimbursement of the claimant's costs of Kshs.20,000.00.
The relief of reinstatement is unmerited and it is declined.
Based on the contradictory evidence adduced, the claimant is awarded payment for 30 untaken leave days.
Issues in the judgment
#Internal date contradiction: the memo is dated 20th May 2024 in one passage but referred to as dated 20th May 2025 in the analysis.
The termination letter is said to catalogue benefits including salary up to 27th July 2025, apparently a typographical error for 2024.
The respondent's stated terminal dues figure is inconsistent: Kshs.116,020.00 in the defence versus Kshs.116,200 in the analysis.
Contradictory salary figures: RW1 cross-examination records salary as Kshs.35,000.000 and the claim as Kshs.35,000 while the final award for July 2024 salary is Kshs.31,500.00.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Uinion of Commercial Food and Allied Workers v Bowip Agencies Limited (Cause E016 of 2025) [2025] KEELRC 2243 (KLR)", Case Analysis (2025). Not stated in judgment (Memorandum of Claim dated 19th March 2025, filed 21st March 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2243/eng@2025-07-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.