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ELRCPartially AllowedMombasa CMELRC No. E318 of 2022 (appeal)

Export Consolidated Services Kenya Limited v Gitau (Appeal E162 of 2025) [2025] KEELRC 3689 (KLR)

Employment and Labour Relations Court
18 December 2025
2,774 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~11 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court upheld a lawful redundancy but limited underpayment claims to 12 months, awarding severance pay the trial court had missed.

What this practically means

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Executive summary

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This is a first appeal from the judgment of the Magistrates' Court at Mombasa in CMELRC No. E318 of 2022 delivered on 4 August 2025, in which the respondent, a former turn man and truck driver employed by the appellant, was awarded notice pay, underpayments, house allowance and 8 months' compensation after the trial court found his employment was unfairly terminated through redundancy. The appellant appealed on four grounds, contending that the redundancy complied with section 40 of the Employment Act, that the awards of underpayments and house allowance were time-barred and unjustified, and that the compensation award was excessive. The court reassessed the record as a first appeal. It found that the appellant issued a general redundancy notice to all employees on 15 October 2021 and a personal notice setting out selection criteria, which the respondent did not challenge, and therefore the mandatory section 40 procedures were complied with and the termination was lawful. It held underpayments to be continuing injuries under section 90 claimable only within 12 months of cessation, awarding Ksh. 13,741.80 only. It awarded severance pay of Ksh. 60,585.45 for 6 completed years at 15 days per year, which the trial court had overlooked. It rejected the overtime claim as dishonest and unjust enrichment and found leave taken or paid. Compensation and notice pay awards were set aside. Each party was ordered to bear its own costs in the appeal and trial court.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the redundancy followed the mandatory procedures under section 40 of the Employment Act
  2. 2.Whether the awards of underpayments and house allowance were justified and within the limitation period under section 90 of the Act
  3. 3.Whether the award of 8 months' compensation was excessive and unjustified
  4. 4.Whether severance pay, overtime and leave claims were due

Key legal issues

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01

Compliance with section 40 redundancy procedures

Holding

The appellant complied: general notice issued 15 October 2021, personal notice setting criteria, and the respondent did not challenge the documents

Reasoning

The court found the notices set out criteria (seniority, skills, abilities, reliability) for identifying affected employees. The respondent did not challenge the application of the criterion to him, only claiming he was not served with the general notice, and the trial court's contrary finding was unsupported.

p. 5
02

Limitation of underpayment claims under section 90

Holding

Underpayments are continuing injuries claimable within 12 months of cessation of employment; only 12 months' underpayment of Ksh. 13,741.80 awarded

Reasoning

Claims dating from 2010 to 2018 as a turn man and earlier truck driver service fell outside the 12-month window. Employment converted from casual to written contract on 4 January 2016, so earlier claims had to be addressed within that contract and section 90.

p. 5
03

Compensation for unfair termination

Holding

Not due; termination was lawful as section 40 procedures were followed

Reasoning

Having found the redundancy lawful and the procedures adhered to, the award of 8 months' compensation and notice pay by the trial magistrate lacked evidential foundation and was set aside.

p. 5
04

Severance pay

Holding

Due under section 40 at 15 days per completed year; 6 full years (4 January 2016 to 15 January 2022) yields Ksh. 60,585.45

Reasoning

The trial court failed to address severance despite the redundancy. Using the last due wage of Ksh. 20,195.15 (minimum wage plus 15% house allowance), severance was computed for 6 completed years.

p. 6
05

First appeal duty

Holding

The court reassessed the record while according due regard to the trial court's advantage of observing witnesses

Reasoning

As a first appeal, the court is obliged to reassess the evidence and reach its own conclusions, recognising that the trial court saw and heard the witnesses testify.

p. 4

Legal principles established

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  • A general notice to employees followed by a personal notice, setting out selection criteria, satisfies section 40 of the Employment Act in a redundancy
  • Where the employee is not issued with the necessary notice, payment in lieu of notice is allowed under section 40(1)(f) of the Employment Act
  • Underpayments are a continuing injury under section 90 of the Employment Act and must be claimed within 12 months of cessation
  • Costs in employment claims do not automatically follow the cause and must be justified

Court orders

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  1. 1.Employment of the respondent was lawfully terminated
  2. 2.Underpayments, including house allowance, Ksh. 13,741.80
  3. 3.Severance pay for 6 years Ksh. 60,585.45
  4. 4.For the appeal and trial court, each party to bear its costs

The bench

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

majority

Wrote the judgment

On appeal from
Magistrates' Court (ELRC), Mombasa
Mombasa CMELRC No. E318 of 2022
Jurisdiction invoked
First appeal from the magistrates' court under the Employment Act and Employment and Labour Relations Court Act

Relief refused

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Notice pay and 12 months' (8 months') compensation for unfair termination

Redundancy procedures under section 40 of the Employment Act were complied with; termination was lawful

p. 5

Underpayments covering the full period of employment

Underpayments are continuing injuries claimable within 12 months under section 90 of the Act; only 12 months allowed

p. 5

Overtime claim

General claim over 11 years, a continuing injury, and unjust enrichment given sick leave and annual leave taken

p. 6

Costs of the suit and the appeal

Costs in employment claims must be justified; no justification offered

p. 6

Costs

For the appeal and trial court, each party to bear its costs.

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.

Upon the general notice to all employees on 15 October 2021 and the personal notice dated 16 November 2021, the appellant complied with the mandatory procedures under section 40 of the Act.
p. 5redundancy procedure
The finding of unfair termination of employment is not supported by the evidence and records before the trial court.
p. 5unfair termination
underpayments are defined as a continuing injury under section 90 of the Act. This should be claimed within 12 months upon cessation of the injury
p. 5limitation of continuing injuries
In employment claims, costs do not follow the cause. These must be justified under section 12(4) of the Employment and Labour Relations Court Act and Rule 73 of the Employment and Labour Relations Court (Procedure) Rules.
p. 6costs
For the appeal and trial court, each party to bear its costs.
p. 6final orders on costs

Issues in the judgment

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minor

Inconsistent dates of employment - claim pleads employment from 3 October 2010 but the Determination states 3 October 2013

minor

The paragraph numbering jumps from 15 to 33 and then returns to 16, indicating a numbering error

minor

Internal inconsistencies in the redundancy notice dates - the response refers to a notice dated 2 March 2020 and a personal notice dated 15 December 2021 on appeal, but the Determination refers to an internal memo dated 19 December 2020 and a personal notice dated 16 November 2021

minor

Submissions refer to a meeting on 19 September 2020 while the response alleges minutes of a meeting held on 27 February 2020

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, "Export Consolidated Services Kenya Limited v Gitau (Appeal E162 of 2025) [2025] KEELRC 3689 (KLR)", Case Analysis (2025). Mombasa CMELRC No. E318 of 2022 (appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/3689/eng@2025-12-18

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