Kariuki v Rugu ( Sued as the Legal Administrator of the Estate of Paul Rogo) & 3 others (Employment and Labour Relations Cause E044 of 2021) [2025] KEMC 252 (KLR)
The bottom line
#A Nakuru court ruled that firing a worker as 'redundant' without written notice, severance pay, or a hearing is unlawful, awarding her over Ksh 2.6 million.
What this practically means
#Executive summary
#Key legal issues
#Whether the redundancy complied with section 40 of the Employment Act 2007
The redundancy did not comply with section 40 and amounted to unfair termination in both periods
The claimant received no prior notice of termination in either period, was not paid severance pay, was not consulted or given a hearing, and the respondent could not demonstrate a fair process. The respondent also admitted hiring new staff after reopening post-Covid, undermining the claimed redundancy. Section 40's conditions are mandatory and their breach renders the termination unfair.
Burden of proof for employment terms absent written contract and records
The respondent's failure to keep statutory records shifted the burden of proof to it and prejudiced its defence
Sections 10 and 94 of the Employment Act require written contracts and records of wages, hours, leave and social security contributions. The respondent admitted records were missing and payment was in cash without payslips, triggering section 10(7). Reliance was placed on authorities holding that documentation of the employment relationship is the employer's responsibility, though the claimant still bears an evidential burden.
Certificate of service
Denial of a certificate of service violated the Employment Act; the respondent was ordered to issue one
The respondent admitted failing to issue a certificate of service. The court held that a certificate of service is a statutory right, not a favour, and its denial prejudices the employee's future employment prospects.
Claim for unpaid annual leave
Dismissed for lack of evidence
Although the respondent produced no records showing the claimant worked only statutory hours, the claimant herself gave no oral or documentary evidence that she applied for leave and was denied, so this head failed while related heads (overtime, holiday pay) succeeded.
Legal principles established
#- Where an employer fails to produce a written contract or written particulars, the burden of proving or disproving an alleged term of employment shifts to the employer
- An employer declaring redundancy must notify the employee and labour officer in writing one month prior, pay 15 days' severance pay per completed year of service, follow a fair selection criterion and consider alternatives; failure to comply renders the termination unfair
- Where an employer obligated to produce employment records fails to do so, an adverse inference may be drawn that the claimant's assertions on the point are true
Court orders
#- 1.A declaration that the decision by the Respondent to terminate the Claimant's services on 1st February 2018 and on 20th March 2020 on account of redundancy was unlawful and unfair
- 2.Compensation for unlawful termination in both the first and second period totaling kshs 598,719.24
- 3.Payment of monies owed in lieu of notice in both periods totaling kshs 49,893.27
- 4.Payment of all monies emanating from underpayment for both periods totaling kshs 1,204,108.50
- 5.Payment of all monies emanating from unpaid overtime and days worked during the holidays totaling Kshs 645,168.44
- 6.Payment of severance pay of kshs 106,466.76 for the two periods of service
- 7.The respondents to issue a certificate of service to the claimant
- 8.Costs of the suit to be paid by the respondents
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment claims under the Employment Act 2007 (provisions as stated in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kariuki v Rugu ( Sued as the Legal Administrator of the Estate of Paul Rogo) & 3 others (Employment and Labour Relations Cause E044 of 2021) [2025] KEMC 252 (KLR)", Case Analysis (2025). . Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/252/eng@2025-06-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.