Odhiambo & 2 others v Ona Kenya Limited & another (Cause E307 of 2025) [2025] KEELRC 3703 (KLR)
The bottom line
#Kenya's Employment Court held a US parent company jointly liable with its Kenyan subsidiary for unfair redundancy and awarded three employees months of salary 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 the Claimants have a cause of action against the 2nd Respondent
- 2.Whether termination of the Claimants' employment was unfair
- 3.Whether the reliefs sought by the Claimants are merited
Key legal issues
#Whether the Claimants had a cause of action against the 2nd Respondent
Yes - the 2nd Respondent was a joint employer of the Claimants
Despite formal contracts with the 1st Respondent, the Claimants were supervised, appraised, and rewarded by officers of the 2nd Respondent, shared its email domain, workspace and offices, and executed Confidentiality and IP Assignment Agreements with it permitting transfer between affiliates. The integral part of business and control tests were satisfied. No outsourcing or service agreement between the two entities was exhibited.
Whether the termination of the Claimants' employment was unfair
Yes - the redundancy was procedurally flawed and unfair under Section 45 of the Employment Act
The Claimants were not union members and therefore had to receive personal written notices under Section 40(1)(b); none were issued. The selection criteria under Section 40(1)(c) were never produced, and termination letters were silent on leave pay, notice pay and severance contrary to Sections 40(1)(e), (f) and (g). Non-compliance with mandatory statutory conditions rendered the whole process unfair.
What reliefs flow from the unfair termination
Compensation of four months' salary per Claimant plus one month's notice pay; severance, leave pay and aggravated damages declined
The Court exercised discretion under Section 49 to award four months' salary as compensation and one month's salary in lieu of notice under Section 35(1)(c). Severance pay was refused because compensation under Section 45 already covers unfair termination; leave dues failed as unproved special damages; and general and aggravated damages would amount to a double award.
Legal principles established
#- Where an employee is not a member of a trade union, redundancy notification must be in writing to the employee personally and to the local labour officer
- Failure to comply with the mandatory conditions in Section 40 of the Employment Act renders a redundancy an unfair termination under Section 45
- An entity that exercises managerial control, appraises and rewards an employee cannot deny an employment relationship; transfer of an employee is a managerial prerogative of an employer
Court orders
#- 1.Judgment entered for the Claimants against the 1st and 2nd Respondents, jointly and severally
- 2.1st Claimant awarded Kshs.4,021,379.35 being four months' salary for unfair termination (Kshs.3,217,103.48) plus one month's salary in lieu of notice (Kshs.804,275.87)
- 3.2nd Claimant awarded USD 32,500 being four months' salary for unfair termination (USD 26,000) plus one month's salary in lieu of notice (USD 6,500)
- 4.3rd Claimant awarded USD 14,060 being compensation for unfair termination (USD 11,248) plus one month's salary in lieu of notice (USD 2,812)
- 5.Awarded sums subject to statutory deductions pursuant to Section 49(2) of the Employment Act
- 6.Interest on the awarded sums at Court rates from the date of Judgment until payment in full
- 7.Costs of the suit awarded to the Claimants
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Court Act and the Employment Act, 2007 (suit determined on pleadings and affidavits pursuant to Rule 59 of the ELRC (Procedure) Rules 2024)
Relief refused
#Severance pay at 15 days' pay for each completed year of service
A finding of unfair termination under Section 45 excludes an award of severance pay
Payment for outstanding leave days in cash
Claim was in the nature of special damages, not specifically pleaded and proved with amounts and accrual years
General and aggravated damages for discrimination, violation of constitutional rights and unprocedural redundancy
Not proved; compensation for unfair termination is itself in the nature of damages and an additional award would be double compensation
Costs
Costs of the suit are awarded to the Claimants.
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.
I return a finding that the Claimants were employees of the 1st and 2nd Respondents, and have a cause of action against both the 1st and the 2nd Respondents.
The Respondent's failure to comply with mandatory provisions in terminating the Claimants' employment on account of redundancy rendered the whole process unlawful, and therefore unfair.
Transfer of an employee is a managerial prerogative of an employer. The 2nd Respondent cannot blow hot and cold at the same time.
A claim for payment in respect of leave earned and not taken is in the nature of special damages, and must be specifically pleaded and proved.
In sum, and having considered written submissions filed on behalf of the parties herein, Judgment is hereby entered for the Claimants against the 1st and 2nd Respondents, jointly and severally
Issues in the judgment
#Claimants' reliefs at paragraph 32 cite Sections 40(1)(c), (e), (f) and (g) inconsistently across Claimants and describe 12 months' compensation under both Section 49(1)(c) and Section 40(1)(c), though the Court did not rely on the mistaken provisions
The judgment states the Claimants served four years, but the pleaded employment contracts run from January 2020/January 2021 to March 2025 (roughly four to five years), and the Respondents' Statement of Response says contracts were signed 'between December 2020 and January 2021' contrary to the pleading of a 30th January 2020 contract
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Odhiambo & 2 others v Ona Kenya Limited & another (Cause E307 of 2025) [2025] KEELRC 3703 (KLR)", Case Analysis (2025). Not stated in the judgment provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/3703/eng@2025-12-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.