Export Consolidated Services Kenya Limited v Gitau (Appeal E162 of 2025) [2025] KEELRC 3689 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the redundancy followed the mandatory procedures under section 40 of the Employment Act
- 2.Whether the awards of underpayments and house allowance were justified and within the limitation period under section 90 of the Act
- 3.Whether the award of 8 months' compensation was excessive and unjustified
- 4.Whether severance pay, overtime and leave claims were due
Key legal issues
#Compliance with section 40 redundancy procedures
The appellant complied: general notice issued 15 October 2021, personal notice setting criteria, and the respondent did not challenge the documents
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.
Limitation of underpayment claims under section 90
Underpayments are continuing injuries claimable within 12 months of cessation of employment; only 12 months' underpayment of Ksh. 13,741.80 awarded
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.
Compensation for unfair termination
Not due; termination was lawful as section 40 procedures were followed
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.
Severance pay
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
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.
First appeal duty
The court reassessed the record while according due regard to the trial court's advantage of observing witnesses
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.
Legal principles established
#- 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
#- 1.Employment of the respondent was lawfully terminated
- 2.Underpayments, including house allowance, Ksh. 13,741.80
- 3.Severance pay for 6 years Ksh. 60,585.45
- 4.For the appeal and trial court, each party to bear its costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
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
#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
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
Overtime claim
General claim over 11 years, a continuing injury, and unjust enrichment given sick leave and annual leave taken
Costs of the suit and the appeal
Costs in employment claims must be justified; no justification offered
Costs
For the appeal and trial court, each party to bear its costs.
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.
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.
The finding of unfair termination of employment is not supported by the evidence and records before the trial court.
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
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.
For the appeal and trial court, each party to bear its costs.
Issues in the judgment
#Inconsistent dates of employment - claim pleads employment from 3 October 2010 but the Determination states 3 October 2013
The paragraph numbering jumps from 15 to 33 and then returns to 16, indicating a numbering error
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
Submissions refer to a meeting on 19 September 2020 while the response alleges minutes of a meeting held on 27 February 2020
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.