Njoroge v Rugu (Sued as the Legal Administrator of the Estate of Paul Rogo Itotia (Deceased)) & 3 others (Employment and Labour Relations Cause E045 of 2021) [2025] KEMC 253 (KLR)
The bottom line
#A Kenyan court awarded a tailor nearly Kshs. 3 million because her employer skipped the required notice and consultation steps in a 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 Claimant's termination on account of redundancy amounts to an unfair termination
- 2.Whether the Claimant is entitled to the reliefs sought
- 3.The ancillary question of the keeping of employment records under Sections 9, 10 and 74 of the Employment Act, 2007
Key legal issues
#Keeping of employment records
The deceased employer never reduced the contract of employment to writing nor kept records as required by Sections 9, 10 and 74 of the Employment Act; consequently the Claimant's oral evidence of her earnings and entitlements was uncontroverted.
RW1 admitted no proper records existed to ascertain what employees earned. Sections 9 and 10 require a written contract detailing particulars of employment within three months, and Section 74(c) mandates written employment records including wage patterns. In their absence, the claimant's pleaded and oral evidence remains unchallenged and the court accepts it as the basis of the awards.
Whether the redundancy was a fair termination
Although there were valid substantive reasons for declaring the Claimant redundant in both periods (the death of the employer in 2018 and the COVID-19 closure in 2020), the redundancies were procedurally unfair because no notice was given to the Claimant or the labour office and no consultation took place.
Section 40 of the Employment Act sets stringent preconditions for redundancy: written notice to the employee and labour officer at least one month prior, due regard to seniority and skill, payment of accrued leave, one month's notice or pay in lieu, and severance pay at fifteen days per completed year. No evidence of any such notice was tendered, and the Claimant's efforts to establish the status of her employment were futile. Citing Anuro, Khamis, Nairobi Hospital, Kenya Airways and German School Society, the court held both substantive justification and procedural fairness are required; the procedure limb failed, warranting maximum compensation.
Entitlement to reliefs
The Claimant was awarded maximum compensation for unfair termination, notice pay, underpayment and house allowance, normal overtime, holiday pay and severance pay, with a certificate of service; the annual leave claim was dismissed for want of evidence.
Having found the termination procedurally unfair, the court exercised its discretion to award maximum compensation of twelve months' gross pay for each period under Section 49 of the Employment Act. The employer's failure to produce records meant the claims for underpayment, house allowance, overtime and public holiday pay stood uncontroverted and were awarded as pleaded. Severance pay followed Section 40(1)(g). The leave claim failed because there was no proof that leave was applied for and denied.
Legal principles established
#- For a termination to pass the fairness test, the employer must establish both a valid and fair reason and a fair procedure.
- An employer terminating on account of redundancy must strictly comply with the conditions in Section 40 of the Employment Act, including written notice to the employee and the labour officer at least one month before termination, consultation, payment of leave in cash, one month's notice or pay in lieu, and severance pay of not less than fifteen days' pay per completed year of service.
- Consultation is an essential part of the redundancy process and ensures substantive fairness.
- Where an employer fails to keep the employment records mandated by the Employment Act, the employee's uncontroverted oral evidence of her claims stands.
Court orders
#- 1.A declaration that the decision of the Respondent to terminate the Claimant's employment on account of redundancy was unlawful and unfair
- 2.Unfair termination compensation of Kshs. 570,217.07
- 3.Notice pay of Kshs. 47,351.42
- 4.Underpayment and house allowance of Kshs. 1,539,144.93
- 5.Normal overtime of Kshs. 493,922.7
- 6.Holiday pay of Kshs. 168,638.31
- 7.Severance pay of Kshs. 175,276.65
- 8.Total award of Kshs. 2,994,551.08 entered in favour of the claimant against the respondents
- 9.Issuance of a Certificate of Service
- 10.The respondents shall pay the Claimant's costs of this 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 (first-instance labour cause by Memorandum of Claim)
Relief refused
#Annual leave pay (Kshs. 206,600.40 for the 1st period and Kshs. 31,141.70 for the 2nd period)
The claim lacked supportive evidence and legal justification; no evidence that the Claimant applied for leave and was denied
Costs
The respondent shall pay the Claimant's costs of this 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.
There being no records of employment tendered herein, the claimant’s oral claims remains uncontroverted.
for termination of employment to pass the fairness test, it must be demonstrated that the employer had a valid and a fair reason to terminate the employee’s employment and he did so in accordance with fair procedure.
In this case, no evidence was submitted in Court showing either the claimant or the labour ofice were served with a notice before the commencement of redundancy.
In conclusion an order of declaration be and is hereby made declaring that the decision of the Respondent to terminate the Claimant’s employment on account of redundancy was unlawful and unfair and the judgment is entered in favour of the claimant against the respondents
Total award……………………...…………Kshs. 2,994,551.08
viii. The respondent shall pay the Claimant’s costs of this suit.
Issues in the judgment
#Internal arithmetic inconsistencies: the component awards in the body of the judgment do not reconcile exactly with the final totals (e.g. underpayment/house allowance described as 'Kshs.1,221,740.28 for the 1st period' while the Memorandum of Claim pleaded 'Kshs.321,740.28'; normal overtime awarded 'Kshs. 404,009.78' versus claimed 'Kshs.404,609.78'; holiday pay 'Kshs. 29,208.35' versus claimed 'Kshs.29,288.35'; severance 'Kshs. 28,097.79' versus claimed 'Kshs.28,097.99').
Paragraph numbering in the judgment is irregular - the number 33 is used for three separate rulings (Underpayment & House Allowance, Normal Overtime, Public Holidays) and 36 for two (Severance pay and Conclusion).
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Njoroge v Rugu (Sued as the Legal Administrator of the Estate of Paul Rogo Itotia (Deceased)) & 3 others (Employment and Labour Relations Cause E045 of 2021) [2025] KEMC 253 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/253/eng@2025-06-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.