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
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the redundancy of the claimant in the first and second periods of employment was in accordance with the law and met the criteria set under the Employment Act 2007
- 2.What remedies, if any, the claimant is entitled to
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
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment claims under the Employment Act 2007 (provisions as stated in the judgment)
Relief refused
#Claim for unpaid annual leave for both periods
No evidence from the claimant that she applied for annual leave and was denied
Service pay / payment of unpaid N.S.S.F dues as pleaded
Not included among the orders granted in the conclusion; only severance pay was awarded
Costs
Cost of the suit to be paid by the respondents
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.
In conclusion an order of declaration be and is hereby made declaring that the decision by the Respondent to terminate the Claimant's services on 1ST of February 2018 and on the 20th of march 2020 on account of redundancy was unlawful and unfair and judgment is entered in favor of the claimant against the respondent
Thus, redundancy is a legitimate ground for terminating a contract of employment provided there is a valid reason based on the operational requirements of the employer and the termination is in accordance with fair procedure.
On these facts alone the only conclusion that may be drawn is that the redundancy did not comply with the provisions of section 40 and amounts to an unfair termination.
Certificate of service is not a favor but a statutory right as its denial prejudices an employee's future employment prospects.
The claimant was neither consulted nor given a chance for a hearing when the redundancy decision was being made. This was a violation of section 41(2) of the Employment Act 2007
There was however no evidence from the claimant of whatever nature, oral or documentary, that she applied for annual leave and was denied. I thus do hereby dismiss the claim for annual leave.
Issues in the judgment
#The judgment cites section 51 of the Employment Act as governing certificates of service in one passage and section 50(1) in another
The respondents' pleading is internally inconsistent, admitting employment by them while also pleading 'That the respondent was employed on a retainer salary of ksh 3,500'
The judgment misstates the severance pay provision, stating 'an employee to pay the employer a severance pay'
The claimant's start date is inconsistently stated as 1st January 2013 in the memorandum of claim recital but the salary progression refers to initial retention 'up to the 31st of December 2013' from ksh 3,500, and the respondents aver employment from 1st January 2006
The severance pay award in the conclusion (kshs 106,466.76 for both periods) is half the sum awarded in the body for the first period alone (kshs 74,976.49) plus the second period (kshs 31,490.27), which would total kshs 106,466.76 - the totals do reconcile, but the body describes them as sums for each period separately
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). Not stated in the judgment. 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.