Lucky Wambui Mbuvi v China Communications Construction Company Limited
The bottom line
#A Kenyan court ruled a redundancy unfair because the employer never personally served the worker with written notice, even though the project's completion justified the redundancy.
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 separation was through summary dismissal for misconduct or redundancy
- 2.Whether the separation fits the meaning of unfair/unlawful termination
- 3.Whether the Claimant is entitled to the reliefs sought
Key legal issues
#Whether the separation was summary dismissal for alleged theft or redundancy
The court found the separation was on account of redundancy; the Claimant adduced no evidence of the alleged theft, and his own witness (a labour officer) confirmed the redundancy notice was served on the County Labour Office.
The burden lay on the Claimant to prove the alleged summary dismissal for theft of oil. He produced no evidence of the theft allegation. Instead, the documentary evidence and CW2's testimony confirmed a redundancy notice dated 5th June 2018 was on the labour office file and stamped, corroborating the Respondent's account of redundancy.
Whether the redundancy procedure complied with Section 40(1)(b) of the Employment Act
Procedure was non-compliant: the labour officer was notified, but the Claimant was never personally served with a notice of intention to carry out redundancy, nor with the termination letter; service evidence was hearsay.
Section 40(1)(b) requires personal written notification of the employee and the labour officer. Only the labour office notification was proved by the stamped notice. RW1 admitted she did not serve the correspondence and her evidence that the Claimant was served but refused to sign was hearsay from the Rongai HR Officer, who was not called as a witness. The mandatory procedure was therefore breached, rendering the termination unfair under Section 45(2).
Whether the reason for redundancy was valid
Completion of the SGR construction project rendered the Claimant's services superfluous, a valid operational-requirements reason under Section 45(2)(b).
The redundancy notice cited completion of the SGR project. The Claimant led no evidence rebutting that the Nairobi–Naivasha SGR project, particularly the Rongai section, ended around July 2018. The court applied Kenya Airways Ltd v Aviation & Allied Workers Union on termination based on operational requirements, holding the reason valid even if the contract were indefinite.
Entitlement to terminal dues, severance pay and certificate of service
Terminal dues claim failed for want of particulars/quantification; severance pay unavailable for under one year of service; certificate of service granted as unopposed.
The Claimant left assessment of terminal dues entirely to the court without pleading particulars, so none could be assessed. His payslip and bank statement showed payment of Kshs. 38,792.65 including salary in lieu of notice, July salary, overtime, leave and transport. Severance pay requires completed years of service. The certificate of service prayer was unopposed and allowed.
Legal principles established
#- An employer must personally serve the employee with written notice of intended redundancy under Section 40(1)(b) of the Employment Act; failure to do so renders the termination unfair and unlawful even where the labour officer was notified and the redundancy reason was valid.
- Completion of a project for which an employee was engaged is a valid and fair reason for redundancy based on operational requirements under Section 45(2)(b).
- Severance pay under Section 40(1)(g) accrues only for each completed year of service; an employee serving less than one year is not entitled to it.
Court orders
#- 1.Declaration that the termination of the Claimant's employment by the Respondent was unlawful and unfair as it violated the Employment Act
- 2.Certificate of service granted as prayed
- 3.Costs of the suit awarded to the Claimant plus interest at court rates from the date of filing the suit
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 Act, 2007 (unfair termination claim)
Relief refused
#Terminal dues to be assessed by the court
Claimant did not plead particulars or quantify the terminal dues; court unable to assess
Costs
Claimant awarded costs of the suit plus interest at court rates from the date of filing the suit
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.
Having considered the evidence on record, I have reached the conclusion that the Claimant was never served with any notice of intention to carry out redundancy as required under Section 40 (1) (b).
The redundancy procedure followed was therefore not compliant with the mandatory requirements of Section 40 (1) (b) of the Act and it therefore amounted to an unfair and unlawful termination of his employment within the meaning of Section 45 (2) of the Act.
In the circumstances I find and hold that the redundancy herein was a valid and fair reason for terminating the Claimants employment because it related to the employers operational requirements within the meaning of Section 45 2 (b) of the Employment Act.
However the prayer for certificate of service is granted as prayed. Finally I award the Claimant costs of the suit plus interest at court rates from the date of filling the suit.
Issues in the judgment
#Conflicting separation dates in opening paragraph
Claimant's sex referred to inconsistently as 'he' and 'his' versus 'she' for RW1 context
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Lucky Wambui Mbuvi v China Communications Construction Company Limited", Case Analysis (2026). Cause No. 1256 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2597/eng@2026-09-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.