Elye Abdulhalim Abbas v Eman Girls Educational Centre

Elrc Cause No. E012 Of 2026 2. That the Claimant was an employee of the Respondent, that she served under a fixed-term contract of five years, and that the employment relationship came to an end at the Respondent's initiative well before the appointed lapse date, are all matters beyond dispute. The contest is on the manner in which the relationship came to an end. To the Claimant, she was declared redundant in all but name, without any of the safeguards that the law attaches to a redundancy, and was then singled out when every other affected teacher was invited to apply for employment in the merged institution. To the Respondent, there was no redundancy at all. A financial downturn compelled it to close the school, and it did no more than exercise the right that clause 15.3 of the contract gave either party to end the relationship on one month's notice. 3. The suit was filed together with a Notice of Motion of even date in which the Claimant sought, among other orders, that the Respondent be compelled to furnish security in the sum of Kshs. 4,524,000. The Respondent opposed the application through a replying affidavit sworn on 25th February 2026 by Siraj Awadhi Saidi. On 24th April 2026, 2

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Elrc Cause No. E012 Of 2026 the Claimant abandoned the application so as to pave the way for an expeditious disposal of the substantive suit. Upon that abandonment, the parties recorded a consent that the suit be disposed of under Rule 59 of the Employment and Labour Relations Court (Procedure) Rules, 2024, on the basis of the pleadings, witness statements and documents filed, and written submissions. Both parties have filed submissions. This judgment is the outcome of a critical analysis of that material. B. THE CLAIMANT'S CASE 4. By a Statement of Claim dated 28th January 2026, the Claimant pleaded that she was employed by the Respondent as a teacher serving as Principal under a fiveyear fixed-term contract commencing 28th August 2023, at a monthly salary of Kshs. 120,000, and that she discharged her duties complaint, warning or diligently disciplinary and without action until any the Respondent terminated her employment on or about 29th August 2025. 5. She averred that the Respondent purported to terminate her employment on account of redundancy through what 3

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Elrc Cause No. E012 Of 2026 was described as a one-month notice dated 29th August 2025, with effect from 1st September 2025, and that her last working September day 2025. would therefore However, have been 30th the Respondent simultaneously required her to execute clearance forms indicating that her employment had already ceased on 1st September 2025, an inconsistency which, she contended, rendered the notice irregular and insincere. 6. It was her case that the Respondent's true intention was to restructure the institution by merging with other schools and rebranding under a different name so as to reduce its wage bill; that the mandatory procedure under section 40 of the Employment Act, 2007 was not followed; and that while the other employees affected by the restructuring were issued with termination letters and then given an opportunity to reapply for their positions, she was denied that opportunity without any lawful justification. No terminal dues had been paid to her despite demand. 7. She particularised the unfairness as a failure to notify her personally and the Labour Officer in writing under section 4

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Elrc Cause No. E012 Of 2026 40(1)(b); a failure to give her a chance to reapply like the other employees and to have regard to her length of service under section 40(1)(c); and a failure to pay her leave, notice pay and severance pay under section 40(1) (e), (f) and (g). 8. In her witness statement, the Claimant added that she had resigned from secure employment with the Government of Kenya on the Respondent's assurance of a stable five-year contract; that after she received the notice she was compelled to proceed on leave for the whole of September 2025, for which she was never paid; and that the Respondent's directors had declined to release her lesson plan book. 9. She also filed the witness statement of Collins Odhiambo Marembo, who described himself as the Principal of Noble School Education Centre. He stated that before the merger, he and the Claimant were serving as principals within what was to become the unified institution, Emaniyaat Modern Academy Limited; that several meetings were held to address staffing, workload and salary arrangements arising from the integration of 5

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Elrc Cause No. E012 Of 2026 teachers from three schools; that at one of those meetings a proposal was made that the principals issue one-month termination notices to all teachers, which he and the Claimant opposed; that shortly afterwards the Respondent declared the Claimant's position redundant, citing financial difficulties; that the rest of the Respondent's teachers were given one month's notice with effect from 1st September 2025 but were encouraged to apply to Emaniyaat by 15th September 2025; and that those teachers have since resumed duty while the Claimant was excluded from the process. In his view, the financial difficulties were unfounded and the exercise was engineered to favour one of the managing directors who wished to take up the position of Principal of the merged institution. 10. The Claimant's documents included the contract of employment and the letter of offer, both dated 5th August 2023; the notice of termination dated 29th August 2025; a letter from the teaching staff dated 28th August 2025 headed "Reminder on Delayed Salaries and Remedial Class Payments"; the minutes of a teachers' meeting held 6

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Elrc Cause No. E012 Of 2026 on 26th August 2025; a staff clearance form and a clearance certificate form of September 2025; and the correspondence advocates exchanged between between September and the parties' October 2025. Annexed to her supporting affidavit in the application were a Partnership Deed relating to Emaniyaat Modern Academy Limited and a letter dated 2nd September 2025 from Misbah-Ul-Kheir School. 11. The Claimant sought the following reliefs: (a) A declaration that the termination of her employment was unfair and unlawful; (b) An order compelling the Respondent to issue her with a certificate of service; (c) Compensation for unfair termination, being the balance of the contract term of 2 years and 10 months at Kshs. 120,000 per month, Kshs. 4,080,000; (d) Salary for the month of September 2025, Kshs. 120,000; (e) One month's salary in lieu of notice, Kshs. 120,000; 7

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Elrc Cause No. E012 Of 2026 (f) Severance pay at 15 days' salary for 2 years, Kshs. 120,000; (g) Accrued leave of 21 days, Kshs. 84,000; (h) General damages; (i) Costs of the suit; and (j) Interest. C. THE RESPONDENT'S CASE 12. The Respondent filed a Response to the Claim dated 22nd February 2026. It admitted employing the Claimant and admitted her salary, but stated that the contract had a termination clause to which it adhered. It denied the averments on redundancy, the demand that the Claimant execute clearance forms, the merger, and the allegation that other employees were given an opportunity to reapply. On the terminal dues, it pleaded that the Claimant was invited to clear so that her terminal dues could be tabulated and paid, but that despite numerous engagements she refused to collect them. It pleaded 8

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Elrc Cause No. E012 Of 2026 further that her certificate of service was ready and that it was she who had refused to clear and collect it. 13. The Respondent's case was set out in the witness statement of Siraj Awadhi Saidi, its Head of Human Resources and Administration. He stated that the Respondent is an educational institution owned by Eman Girls Educational Centre Limited; that owing to difficult financial constraints, the Respondent was forced to make a decision to close business as it had become hard to run the school; that clause 15.3 of the contract allowed either party to terminate it on one month's written notice or payment of one month's salary in lieu; and that in compliance with that clause, the Respondent gave the Claimant notice and advised her that her terminal dues would be processed and her certificate of service issued upon due clearance. 14. He denied that the closure was for the purpose of merging with a new business entity, and stated that "the issue of the other employees being given an opportunity to apply for employment in another entity is neither here nor there as the other entity is a distinct entity from the respondent 9

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Elrc Cause No. E012 Of 2026 and the Respondent would not have any control on how they run their affairs." He denied withholding the Claimant's lesson plan book, stating that the Respondent had no claim over her personal effects. 15. The Respondent's list of documents comprised the certificate of incorporation of Eman Girls Educational Centre Limited, a resolution of the company passed at a meeting held on 15th February 2026 appointing its advocates and authorising the witness to act for it in this suit, the contract of employment, and the notice of termination dated 29th August 2025. D. THE SUBMISSIONS The Claimant's submissions 16. The Claimant's written submissions are dated 18th June 2026. It was submitted that the Respondent's decision to close business and to merge and rebrand its operations falls squarely within the definition of redundancy in section 2 of the Employment Act; that sections 43, 45, 47 and 49 of the Act apply to a redundancy just as they apply to any other termination; and that the burden of justifying 10

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Elrc Cause No. E012 Of 2026 the termination lay on the Respondent under section 47(5). 17. On substance, it was submitted that the Respondent produced no evidence of the restructuring or of the financial constraints it pleaded, and reliance was placed on Daniel Mburu Muriu v Hygrotech East Africa Ltd [2021] eKLR for the proposition that an employer relying on financial difficulty must substantiate it with financial records. On procedure, it was submitted that no redundancy notice was issued to the Claimant or to the Labour Officer, no selection criteria were disclosed, there was no consultation, and the terminal dues under section 40(1)(e), (f) and (g) remain unpaid. The Court was referred to Kenya Airways Limited v Aviation & Allied Workers Union Kenya & 3 others [2014] KECA 404 (KLR), Banking Insurance & Finance Union (Kenya) v Murata Sacco Society Limited [2014] eKLR and Abigael Jepkosgei Yator & another v China Hanan International Co. Ltd [2018] KEELRC 2541 (KLR). 18. On remedies, the Claimant urged an award of Kshs. 4,080,000 for the unexpired term of the contract, relying 11

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Elrc Cause No. E012 Of 2026 on Kenya Methodist University v Kaungania & another (2022), and, in addition, twelve months' salary as compensation under section 49(1)(c), relying on Kiambaa Dairy Farmers Co-operative Society Ltd v Rhoda Njeri & 3 others (2018). She also sought the terminal dues pleaded, a certificate of service and costs. The Respondent's submissions 19. The Respondent submitted that the relationship between the parties was grounded on a written contract, and that it complied fully with clause 15.3 by giving one month's written notice effective 1st September 2025. The termination was therefore fair and lawful. 20. It was further submitted that the termination was not a redundancy. Redundancy, it was argued, only happens where the employer continues to exist but the position of the employee ceases to exist. The educational institution that employed the Claimant was closed because of precarious financial strain; it ceased to operate and no longer exists; and when the school closed, the employment came to an end naturally because there was no longer an employer. The allegations of restructuring 12

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Elrc Cause No. E012 Of 2026 and of other employees being invited to reapply were said to be unfounded and unsupported by evidence. 21. On the reliefs, the Respondent submitted that the claim for the unexpired term offends the principle of a "fair go all round" and amounts to a claim for pay for work not done, relying on D.K. Njagi Marete v Teachers Service Commission [2013] KEELRC 575 (KLR). It stated that it had always been willing to pay the Claimant her salary for September 2025 and severance pay, which it acknowledged she is entitled to, upon clearance; that her certificate of service will be issued upon handing over; and that the claim for notice pay is spent because one month's notice was given. E. ISSUES FOR DETERMINATION 22. Having considered the pleadings, the witness statements, the documents and the submissions, the following issues present themselves for determination: 13

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Elrc Cause No. E012 Of 2026 (i) On what account was the Claimant's employment terminated? (ii) Was the termination substantively justified and procedurally fair? (iii) What reliefs, if any, is the Claimant entitled to? F. ANALYSIS AND DETERMINATION (i) On what account was the Claimant's employment terminated? The material before the Court 23. The suit having been disposed of by consent under Rule 59, the witness statements and the documents filed stand as the evidence of the parties. Two of the documents on which the Claimant relies, the Partnership Deed and the letter of 2nd September 2025 from Misbah-Ul-Kheir School, came onto the record as annexures to her supporting affidavit in the application that was later abandoned. The abandonment of the application did not remove the documents from the record. The Respondent answered them on oath in its replying affidavit; when the parties consented to dispose of the suit on the material filed, neither sought to exclude any document; and the 14

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Elrc Cause No. E012 Of 2026 Respondent's own witness statement engages with the very matter the documents speak to, namely whether other employees were invited to apply for employment in another entity. I am satisfied that they are properly before the Court. The weight to be attached to them is a matter of evaluation. The letter of 29th August 2025 24. The starting point must be the letter by which the Respondent brought the relationship to an end, for it is the contemporaneous record of the reason the Respondent itself assigned at the time. It reads, in material part: "RE: NOTICE OF TERMINATION OF CONTRACT OF EMPLOYMENT Pursuant to clause 15 of the contract dated 5th August, 2023, between the Eman Girls Educational Centre and you, we hereby give you ONE MONTH NOTICE effective from 1st September 2025 of intent to terminate the said contract for reasons that the Employer is about to close business in the month of October 2025 15

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Elrc Cause No. E012 Of 2026 and therefore your services will no longer be tenable. Consequently, you are hereby directed to proceed on terminal leave from 1st September 2025. You are also asked to make arrangements to handover to the management all the institution properties in your custody and obtain due clearance from the institution by the said date. Your terminal dues, if any, and certificate of service will be processed upon your successful handing over." 25. A critical evaluation of this letter reveals two things. The first is the cause: "the Employer is about to close business in the month of October 2025." The cause lies entirely within the Respondent's enterprise. It has nothing to do with the Claimant's conduct, her performance, her capacity or her compatibility. It is a decision taken by the employer about the future of its business. The second is the effect of that cause upon the Claimant's job: "therefore your services will no longer be tenable." In 16

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Elrc Cause No. E012 Of 2026 other words, because of a change the employer was about to make to its operations, the position of Principal, and with it the Claimant's services, would no longer be required. 26. A reason of that character is what the law describes as a reason based on the operational requirements of the employer, one of the two categories of fair reason recognised by section 45(2)(b) of the Employment Act. It stands in contrast to the other category, a reason related to the employee's conduct, capacity or compatibility. The letter itself therefore places the termination of the Claimant's employment firmly on an operational requirements footing. What redundancy is 27. Section 2 of the Employment Act defines redundancy as: "the loss of employment, occupation, job or career by involuntary means through no fault of an employee, involving termination of employment at the initiative of the employer, where the services of an employee are superfluous and the practices commonly known 17

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Elrc Cause No. E012 Of 2026 as abolition of office, job or occupation and loss of employment." 28. Every element of that definition is present in the letter of 29th August 2025. The loss of employment was involuntary; the Claimant did not ask to leave. It was through no fault of hers; the letter imputes none, and the Respondent has never suggested any. It was at the initiative of the employer. And its stated effect was that her services would "no longer be tenable", which is simply another way of saying that her services had become superfluous to the employer's requirements. In Banking Insurance & Finance Union (Kenya) v Murata Sacco Society Limited (supra), the Court observed that redundancy is the involuntary loss of employment through no fault of the employee, and that the terms reorganisation, retrenchment and restructuring, used differently in various jurisdictions, all have the same end result: the discharge of surplus labour by an employer for any reason otherwise than by way of disciplinary action, since it is positions, and not employees, that become redundant. The Court of Appeal adopted the same understanding in The German 18

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Elrc Cause No. E012 Of 2026 School Society & another v Ohany & another [2023] KECA 894 (KLR), where it reaffirmed the employer's prerogative to determine the structure of its business and, in doing so, to render positions redundant. 29. I am therefore persuaded that the manner in which the Claimant lost her employment falls within a redundancy situation, and I respectfully disagree with the Respondent's assertion to the contrary. The contention that redundancy cannot arise where the employer ceases to exist 30. The Respondent's principal answer is that redundancy presupposes an employer that continues to exist, and that where the employer's business is closed the employment simply comes to an end because there is no longer an employer. The contention does not withstand scrutiny, for three reasons. 31. First, nothing in the statutory definition requires the employer's business to continue. The definition is concerned with why and how the employee lost her job, not with what becomes of the employer afterwards. The closure of an undertaking is, if anything, the clearest 19

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Elrc Cause No. E012 Of 2026 instance of a situation in which the services of employees become superfluous. It would be a curious reading of the Act that afforded the protections of section 40 to an employee who loses her job because one department is abolished, but denied them to an employee who loses her job because the whole enterprise is shut down. 32. Second, the argument proceeds on a false premise of fact. The employer did not cease to exist before the Claimant was terminated; it was the employer that terminated her. The letter itself speaks of a closure that was yet to happen, "about to close business in the month of October 2025." At the time the decision was taken and communicated, the Respondent was a going concern. It exists still. It was the Respondent that entered appearance in this suit, filed a response and a witness statement, and produced a resolution of Eman Girls Educational Centre Limited passed at a meeting held on 15th February 2026 at "the Company's offices", appointing its advocates and designating its Administrator to testify on its behalf. That is not the conduct of an employer that has ceased to exist. 20

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Elrc Cause No. E012 Of 2026 33. Third, the Respondent's own witness describes the Claimant's employer as an educational institution owned by Eman Girls Educational Centre Limited, a company incorporated in 2015. Whatever may have become of the school as a place of learning, the entity that stood behind it and that contracted with the Claimant has not been shown to have been wound up or dissolved. The termination clause does not take the matter outside the Act 34. Nor can the Respondent escape the incidents of a redundancy by pointing to clause 15.3 of the contract. A contractual notice clause regulates the length of notice; it does not, and cannot, displace the statutory requirements that a termination be for a valid and fair reason and in accordance with a fair procedure. Those requirements are imposed by sections 43 and 45 of the Employment Act on every employer, and they cannot be contracted out of. Where, as here, the reason for termination is the redundancy of the employee's position, section 40 prescribes, in mandatory terms, what must be done before the contract may lawfully be terminated. 21

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Elrc Cause No. E012 Of 2026 35. It bears noting that the contract the Respondent relies on does not support the selective reading urged upon the Court. Clause 15.1 provides that prior to termination the employee "shall be subjected to disciplinary proceedings and accorded an opportunity to make presentations to the Employer", and clause 15.2 entitles the employee to be given a reason for the termination. Clause 15.5(d), on which the Respondent's advocates relied in their letter of 15th September 2025, speaks of "any other legally acceptable ground", which returns the inquiry to the law, and therefore to the Employment Act. Clause 15.3 cannot be read in isolation from the provisions that surround it. The alleged closure: a process, not a day's event 36. The Respondent's case is that it closed the school because of financial constraints. Beyond the bare assertion, however, it placed nothing before the Court to demonstrate that the school was in fact closed, when, or how. The closure of a school is a process, not a day's event. It does not happen by the stroke of a pen. One would reasonably expect it to leave a documentary trail: a resolution of the board or the shareholders deciding to 22

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Elrc Cause No. E012 Of 2026 close; communication to parents and guardians; arrangements for the transfer of learners, including those preparing for national examinations; notification to the education authorities with whom the institution was registered; notices to the staff as a whole; and some record of what became of the institution's premises, assets and liabilities. None of this was produced. The Respondent's list of documents comprised only a certificate of incorporation, a resolution authorising the conduct of this suit, the contract of employment and the letter of 29th August 2025. 37. The only document that speaks to closure is the letter of 29th August 2025 itself, which, as I have noted, spoke prospectively of a closure that was yet to come. There is no evidence that the school closed in October 2025 or at all. The burden of proving the reason for termination lay on the Respondent under sections 43(1) and 47(5) of the Act, and an unsubstantiated assertion of closure does not discharge it. The merger: the Partnership Deed and the invitation to apply 23

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Elrc Cause No. E012 Of 2026 38. On the other hand, the material on record points to something other than a bare closure. The Partnership Deed on record relates to Emaniyaat Modern Academy Limited, whose stated address is P.O. Box 87020–80100, Mombasa, the very address of the Respondent. The partnership was to carry on the business of running an educational institution in Mombasa, and was to commence on 15th August 2025, a fortnight before the Claimant's notice. One of the partners named in the deed is Madina Muhamed Mumin, a name which corresponds, save for a variation in spelling, with that of the Director who signed the Claimant's contract of employment and letter of offer on behalf of the Respondent. The deed was drawn by John Kebaso & Co. Advocates, the firm now on record for the Respondent. 39. The letter of 2nd September 2025 from Misbah-Ul-Kheir School informed its staff of the decision to close that school on account of severe financial constraints, stated that "This led to emergence of Emaniyaat Modern Academy which is a partnership of three schools", and required the staff to apply for jobs at Emaniyaat Modern 24

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Elrc Cause No. E012 Of 2026 Academy by 5th September 2025. That account is consistent with the evidence of Mr. Marembo that teachers from three schools were being integrated into the unified institution, and that the Respondent's teachers, given notice with effect from 1st September 2025, were encouraged to apply to Emaniyaat by 15th September 2025. It is consistent, too, with the letter written by the Respondent's teaching staff on 28th August 2025, the day before the Claimant's notice, which was signed off in the name of "Eman girls Education center ~ Emaaniyaat modern Academy." 40. These documents were not challenged in any material respect. The only objection taken to the Partnership Deed, in the replying affidavit, was that it was neither executed nor attested. That objection goes to the deed's effect as an instrument binding its parties, not to its value as evidence of the arrangement it describes. The Claimant did not tender it as an enforceable contract; she tendered it as evidence of a merger. The Respondent did not deny that Emaniyaat Modern Academy Limited exists, that it shares the Respondent's address, that the Respondent's 25

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Elrc Cause No. E012 Of 2026 Director is among its partners, or that the deed was prepared by the Respondent's own advocates. The letter from Misbah-Ul-Kheir School and the statement of Mr. Marembo were met only with general denials. Most tellingly, the Respondent's own witness did not deny that its other employees were given an opportunity to apply for employment in another entity. He said only that the matter was "neither here nor there" because that entity was distinct from the Respondent. That is an acknowledgment, not a denial. 41. In my view, the documents speak to a redundancy situation brought about by the reorganisation or restructuring of the Respondent's enterprise, through its integration with other schools into a new institution. In that reorganisation, the Claimant's position as Principal of the Respondent was rendered superfluous. The Court of Appeal in The German School Society & another v Ohany & another (supra) recognised that restructuring of this kind, which leads to the abolition of a position, is a redundancy to which section 40 applies. 26

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Elrc Cause No. E012 Of 2026 42. Whether, therefore, the matter is viewed through the lens of the Respondent's own letter, which gave the imminent closure of the business as the reason the Claimant's services were no longer tenable, or through the lens of the documents that show that the Respondent's operations were in truth being reorganised into a merged institution, the result is the same. The Claimant's employment was terminated on account of redundancy. (ii) Was the termination substantively justified and procedurally fair? Redundancy: a no-fault termination and the safeguards of section 40 43. Redundancy is unique among the grounds of termination. The employee loses her livelihood through no fault of her own. She has not misconducted herself, she has not underperformed, and she is not incapable of doing the work. She loses her job because of decisions taken by the employer about its enterprise, decisions in which, left to itself, the employer would weigh its own interests alone. It is precisely because the employee is blameless, and because the decision lies wholly within the employer's 27

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Elrc Cause No. E012 Of 2026 hands, that Parliament did not leave redundancy to the general provisions on termination. It enacted a distinct provision, section 40, which sets out fairness safeguards that must be observed before a contract may be terminated on that account. 44. Section 40(1) of the Employment Act provides: "(1) An employer shall not terminate a contract of service on account of redundancy unless the employer complies with the following conditions — (a) where the employee is a member of a trade union, the employer notifies the union to which the employee is a member and the labour officer in charge of the area where the employee is employed of the reasons for, and the extent of, the intended redundancy not less than a month prior to the date of the intended date of termination on account of redundancy; (b) where an employee is not a member of a trade union, the employer notifies the employee personally in writing and the labour officer; 28

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Elrc Cause No. E012 Of 2026 (c) the employer has, in the selection of employees to be declared redundant had due regard to seniority in time and to the skill, ability and reliability of each employee of the particular class of employees affected by the redundancy; (d) where there is in existence a collective agreement between an employer and a trade union setting out terminal benefits payable upon redundancy; the employer has not placed the employee at a disadvantage for being or not being a member of the trade union; (e) the employer has where leave is due to an employee who is declared redundant, paid off the leave in cash; (f) the employer has paid an employee declared redundant not less than one month's notice or one month's wages in lieu of notice; and (g) the employer has paid an employee declared redundant severance pay at the rate of not less 29

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Elrc Cause No. E012 Of 2026 than fifteen days pay for each completed year of service." 45. The provision is couched in mandatory and prohibitory terms: an employer "shall not" terminate on account of redundancy "unless" it complies. The conditions are conjunctive. Each is a condition precedent to a lawful redundancy, and a failure to comply with any one of them renders the termination unlawful and unfair. The Court of Appeal was emphatic on the point in Kenya Airways Limited v Aviation & Allied Workers Union Kenya & 3 others (supra), where Maraga, JA (as he then was) stated: "All the paragraphs of this subsection are clearly conjunctive meaning that they all have to be satisfied for termination on account of redundancy to be lawful." 46. In Banking Insurance & Finance Union (Kenya) v Murata Sacco Society Limited (supra), the Court underscored that redundancy is a process, and that the involvement of the Labour Officer is not a matter of choice: "These provisions of the law are set out in mandatory terms. They are to be followed by 30

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Elrc Cause No. E012 Of 2026 every employer as redundancy does not occur overnight. It is a process. ... The inclusion of the Union where applicable and the Labour Officer is not optional; the law is framed in mandatory terms. Any resultant redundancy process without compliance with the law is unprocedural and a breach to the employment contract." 47. I now turn to the Respondent's compliance, or otherwise, with those safeguards. Notice to the employee and to the Labour Officer 48. The Claimant was not a member of a trade union. Section 40(1)(b) therefore required the Respondent to notify her personally in writing, and to notify the Labour Officer, of the intended redundancy. As the Court of Appeal explained in Kenya Airways (supra), read together with paragraph (a), the notice must convey the reasons for, and the extent of, the intended redundancy, not less than a month before the intended date of termination. 49. The Respondent will say that the letter of 29th August 2025 was such a notice. It was not. The letter was a notice of termination, not the notice contemplated by section 31

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Elrc Cause No. E012 Of 2026 40(1)(a) and (b). The distinction is one of substance, not of form. The notice under section 40(1)(a) and (b) is a notice of an intended redundancy. It is issued at the threshold of the process, while the decision on who is to be affected, and how, remains open. Its purpose is to open the door to engagement. Maraga, JA explained the sequence in Kenya Airways (supra): "My understanding of this provision is that when an employer contemplates redundancy, he should first give a general notice of that intention to the employees likely to be affected or their union. It is that notice that will elicit consultation between the parties ... It is after the conclusions of the consultations on all issues of the matter that notices will be issued to the affected employees of the decision to declare them redundant." 50. The purpose of the section 40 notice was put thus in the same judgment: "The purpose of the notice under Section 40(1) (a) and (b) of the Employment Act ... is to give 32

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Elrc Cause No. E012 Of 2026 the parties an opportunity to consider 'measures to be taken to avert or to minimise the terminations and measures to mitigate the adverse effects of any terminations on the workers concerned such as finding alternative employment.' The consultations are therefore meant to cause the parties to discuss and negotiate a way out of the intended redundancy, if possible, or the best way of implementing it if it is unavoidable." 51. The letter of 29th August 2025 bears none of those hallmarks. It did not invite the Claimant to engage on anything. It announced a decision already taken. It was expressly headed "Notice of Termination of Contract of Employment", was issued "pursuant to clause 15" of the contract, and gave notice "of intent to terminate the said contract". In the very next paragraph, it sent the Claimant on terminal leave from the first day of the notice period and required her to hand over and clear. The Respondent's own clearance certificate form records that she "will cease/has ceased" to be in its employment with 33

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Elrc Cause No. E012 Of 2026 effect from 1st September 2025. There was nothing left to consult about. The letter was, at best, the final step in the process, the notice of termination that paragraph (f) contemplates would follow the conclusion of the process. It could not stand in for the notice that paragraph (b) requires at its commencement. 52. Further, and in any event, there is no evidence whatsoever that the Labour Officer was notified. The Respondent does not even assert it. The requirement of notice to the Labour Officer was therefore not met. Consultation 53. The Court of Appeal in both Kenya Airways (supra) and The German School Society v Ohany (supra) held that consultation between the employer and the affected employee is implicit in section 40(1)(a) and (b), and is an imperative requirement of a fair redundancy. In Kenya Airways, Maraga, JA adopted the words of the New Zealand court in Cammish v Parliamentary Service: "Consultation has to be a reality, not a charade." 54. There was no consultation at all with the Claimant here, whether real or cosmetic. The Respondent's witness does 34

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Elrc Cause No. E012 Of 2026 not claim that any meeting was held with her, or that she was given any opportunity to comment on the proposed closure or reorganisation, to propose alternatives, or to be considered for a position in the merged institution. The only meeting spoken of in the evidence is the one described by Mr. Marembo, at which it was proposed that the principals issue termination notices to all teachers. That was a meeting about how to terminate others, not a consultation with the Claimant about her own position. Selection criteria 55. Section 40(1)(c) required the Respondent, in selecting the employees to be declared redundant, to have due regard to seniority in time and to the skill, ability and reliability of each employee of the particular class affected. Where an entire undertaking genuinely closes and every position is abolished, the need to select may not arise. But that is not what the evidence shows here. The evidence shows that the Respondent's teachers were invited to apply for positions in the merged institution, and that the Claimant was not. It shows, too, that the merged institution was to have a principal, and that the Claimant, the Respondent's 35

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Elrc Cause No. E012 Of 2026 serving Principal, was considered neither for that position nor for any other. In those circumstances, a selection was in fact made, and it was made to the Claimant's exclusion. The Respondent disclosed no criteria at all, and offered no explanation for why the Claimant alone was left out. Section 40(1)(c) was not complied with. Payment of leave, notice and severance 56. Paragraphs (e), (f) and (g) of section 40(1) are framed in the past tense: the employer "has paid" the leave, the notice and the severance pay. Payment is, in other words, a condition of a lawful redundancy. To date, none has been paid. The Respondent's position is that payment awaits the Claimant's clearance. Clearance is a legitimate administrative step, but it cannot be employed to suspend, indefinitely, the payment of dues that the statute makes a condition of the termination itself. These requirements, too, were not met. Substantive justification: sections 43 and 45 apply to redundancy 57. Compliance with section 40 is not the end of the inquiry. A termination on account 36 of redundancy remains a

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Elrc Cause No. E012 Of 2026 termination at the initiative of the employer, and is therefore subject to the requirement of substantive justification under sections 43 and 45 of the Act. The Court of Appeal so held in The German School Society v Ohany (supra). In Kenya Airways (supra), Githinji, JA put it thus: "Section 40(1) of the EA is merely procedural by its tenor. It has to be read together with sections 43, 45 and Section 47(5) of EA. It is implicit from the four sections that to establish a valid defence to a claim for unfair termination based on redundancy, an employer has to prove: (I) the reasons or reasons for termination; (II) that reason for termination is valid and that (III) the reason for termination is fair reason based on the operational requirements of the employer and (IV) that the employment was terminated in accordance with fair procedure." 58. Section 43(1) places on the employer the burden of proving the reason for termination, failing which the termination is deemed unfair within the meaning of 37

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Elrc Cause No. E012 Of 2026 section 45. Section 43(2) defines the reason for termination as the matters that the employer, at the time of termination, genuinely believed to exist and which caused it to terminate the services of the employee. Section 45(2) in turn provides that a termination is unfair if the employer fails to prove that the reason is valid, that it is a fair reason related to the employee's conduct, capacity or compatibility or based on the operational requirements of the employer, and that the employment was terminated in accordance with fair procedure. A redundancy must therefore be genuine. It cannot be used as a cloak for getting rid of an unwanted employee. Was the operational reason genuine? 59. The Claimant contends that the Respondent's reason was not genuine, because the Respondent produced no financial records to prove its alleged financial difficulties, and her witness went further to allege that the difficulties were engineered to favour one of the managing directors. It is true that the Respondent's own evidence on its finances was sparse. But in determining whether a reason has been proved, the Court looks at the whole of the 38

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Elrc Cause No. E012 Of 2026 material placed before it, regardless of which party placed it there. A critical analysis of that material, including the documents filed by the Claimant herself, reveals that the Respondent was financially struggling at the material time. 60. The minutes of the teachers' meeting of 26th August 2025, tendered by the Claimant, record under the heading "Continued salary delays" that the delays had "become a growing concern for the last one year and so, the situation is becoming worse despite several promises from the management", and that the teachers "understand that times are truly tough". Under the heading "Remedial", they record that "Due to financial constraint which we understand the management requested a deduction of the remedial dues which we agreed to. Later on things became tight and another request was tabled to minimize the number of subjects to be handled during the remedial period". The teachers demanded payment of pending July salaries, pending remedial dues and August salaries. The minutes were copied to, among others, the Principal, who was the Claimant. 39

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Elrc Cause No. E012 Of 2026 61. Two days later, on 28th August 2025, the teaching staff wrote again, noting that no response had been received and warning that unless their issues were addressed by 3rd September 2025 they would have no option but to withdraw their services. The letter from Misbah-Ul-Kheir School of 2nd September 2025 attributes the closure of that school to severe financial constraints that made it a liability, and links the emergence of Emaniyaat Modern Academy to that state of affairs. Mr. Marembo himself spoke of meetings to address salary arrangements arising from the integration of the schools. And the Claimant's own salary for September 2025 has never been paid. 62. Against this body of contemporaneous material, much of it generated by the Respondent's own teachers and placed before the Court by the Claimant, the assertion by Mr. Marembo that the financial difficulties were "unfounded" and "engineered" cannot be sustained. He was the Principal of a different school. He did not disclose the basis on which he could speak to the Respondent's finances, and his view is contradicted by the Respondent's own staff, who had been living with salary delays for a year. 40

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Elrc Cause No. E012 Of 2026 The authority of Daniel Mburu Muriu v Hygrotech East Africa Ltd (supra) does not assist the Claimant on this point; the requirement is that the financial difficulty be proved, not that it be proved only by the employer's own financial statements. 63. It is therefore not difficult to conclude that the operational requirements reason, the Respondent's financial distress and its response to that distress through the reorganisation of its enterprise, was genuine. It was a valid and fair reason within the meaning of sections 43 and 45(2)(a) and (b)(ii) of the Act. I find that the termination was substantively justified. Procedural fairness 64. The same cannot be said of the procedure. As I have found, the Respondent did not issue the notice of intended redundancy required by section 40(1)(b) to the Claimant; did not notify the Labour Officer at all; did not consult the Claimant; applied no selection criteria and gave no explanation for excluding her from the opportunity extended to her colleagues; and has not paid the leave, notice pay and severance pay required by paragraphs (e), 41

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Elrc Cause No. E012 Of 2026 (f) and (g). The requirements of section 40(1) being conjunctive, the failure on any one of them would have rendered the termination unlawful and unfair. Here, the failure was on all of them. 65. I find, therefore, that the termination of the Claimant's employment, though substantively justified, was procedurally unfair within the meaning of section 45(2)(c) of the Employment Act. Even if the termination were not a redundancy 66. Before I turn to the reliefs, I should say that even if I were wrong to find that the termination was on account of redundancy, and even if I were to accept the Respondent's case that the Claimant's employment ended because of the financial constraints that led it to close the school, I would still find the termination procedurally unfair. 67. The reason the Respondent itself advances, financial constraint leading requirements to reason. closure, Its is an characterisation operational does not dispense with the need for a fair procedure. Section 45(2) 42

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Elrc Cause No. E012 Of 2026 (c) makes fair procedure a condition of every fair termination, whatever the reason, and section 45(5) directs the Court, in deciding whether it was just and equitable to terminate, to consider the procedure adopted by the employer in reaching the decision and communicating it to the employee. The minimum content of a fair procedure is set out in section 41 of the Act: before terminating, the employer must explain to the employee, in a language she understands, the reason for which termination is being considered; the employee is entitled to have another employee of her choice present during that explanation; and the employer must hear and consider any representations the employee, and the person chosen by her, may make. While section 41 speaks in terms of misconduct, poor performance and physical incapacity, it gives statutory expression to the elementary principle of fairness that runs through Part VI of the Act, that an employee is not to lose her livelihood without first being told why and heard. In the present case, the parties went further and made that principle a term of their bargain: clause 15.1 of the contract required that, prior to 43

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Elrc Cause No. E012 Of 2026 any termination, the employee be accorded an opportunity to make representations to the employer, and clause 15.2 entitled her to a reason. The stipulations of section 41 therefore applied to the Claimant's termination. 68. None of them was observed. The Claimant was not called to any meeting before the decision was taken. The reason for which termination was being considered was never explained to her; she learnt of it only in the letter that communicated the decision. She was not invited to bring a colleague, and she was given no opportunity to make any representation at all, whether on the Respondent's financial position, on alternatives to termination, or on her place in whatever arrangement was to follow. The decision was made and communicated in a single stroke. On either view of the case, the procedure was unfair. (iii) What reliefs is the Claimant entitled to? Declaration 69. Having found that the termination of the Claimant's employment was procedurally unfair and in breach of section 40(1) of the Employment Act, I declare that the termination was unlawful and unfair. 44

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Elrc Cause No. E012 Of 2026 Compensation for the unexpired term of the contract 70. The Claimant's principal monetary claim is for Kshs. 4,080,000, being her salary for the 34 months that remained on her five-year contract. The claim cannot be granted. The Employment Act does not provide for anticipatory earnings. The remedies for unfair termination are those set out in section 49, and payment of salary for a period during which the employee rendered no service is not among them. 71. The question has now been settled with finality by the Supreme Court in Ngokonyo & 2 others v Telkom Kenya Limited (Petition E009 of 2025) [2025] KESC 75 (KLR), a decision that binds this Court by virtue of Article 163(7) of the Constitution. The Supreme Court held: "The common thinking and modern judicial consensus has steadily moved away from allowing claims for anticipatory salaries or future salary earnings up to the date of retirement, considering that such awards not only amount to unjust enrichment, but offend public policy, and contradict the principle that 45

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Elrc Cause No. E012 Of 2026 contracts of employment are by their nature terminable. Employees are paid for services actually rendered. Once employment is terminated, lawfully or unlawfully, including through retirement in the public interest, the employment relationship comes to an end. Any form of payment beyond that date, be they anticipatory salaries or allowances would lack any basis under the law. ... In other words, the court cannot grant anticipatory salaries and allowances for a period the employee did not render any service to the employer. Only damages for unfair termination can be awarded where the court is satisfied that the termination was unlawful. Even then, the remedies must be proportionate to the injury suffered and cannot extend to speculative or prospective benefits." 72. The principle applies with equal force to the unexpired portion of a fixed-term contract, and the more so where, as here, the contract itself contemplated that it could be brought to an end by either party on one month's notice. 46

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Elrc Cause No. E012 Of 2026 To the extent that the decisions cited by the Claimant, including Kenya Methodist University v Kaungania & another (supra), may be read as supporting an award for the unexpired term, they must now be read in the light of Ngokonyo. The claim for Kshs. 4,080,000 is declined. The unexpired term of the contract is, however, a matter I will take into account in assessing compensation under section 49(1)(c). Compensation for unfair termination 73. Under section 49(1)(c) of the Employment Act, the Court may award the equivalent of a number of months' wages or salary not exceeding twelve months, based on the employee's gross monthly wage or salary at the time of termination. The award is discretionary, and section 49(4) sets out the factors to be considered, among them the circumstances in which the termination took place, including the extent to which the employee caused or contributed to it; the employee's length of service; the reasonable expectation of the employee as to the length of time for which her employment would have continued but for the termination; and her opportunity of securing 47

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Elrc Cause No. E012 Of 2026 comparable or suitable employment with another employer. 74. Weighing in the Claimant's favour are the following. She did not cause or contribute to the termination in any way; no fault of any kind was imputed to her. She was on a fixed-term contract with close to three years left to run, and she had a legitimate expectation, rooted in the contract itself, of serving that term. On her uncontroverted account, she left public service on the strength of that contract. The Respondent disregarded every one of the safeguards in section 40, and she alone was excluded from the opportunity extended to her colleagues to apply for employment in the merged institution, without any explanation. Her terminal dues remain unpaid to date. 75. On the other hand, she had served for only about two years. More significantly, I have found that the reason for the termination was genuine. The Respondent was in financial distress, and it is the procedure, not the decision to restructure, that the Court has found wanting. Compensation under section 49 is not meant to punish the employer or to enrich the employee; it is meant to be 48

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Elrc Cause No. E012 Of 2026 proportionate to the injury suffered. The Claimant is also a professional teacher of some standing who retains the ability to secure comparable employment. 76. Balancing these considerations, and having regard in particular to the unexpired term of the contract on the one hand and the genuineness of the financial constraints on the other, I find that an award of seven (7) months' gross salary is fair and just. The Claimant is awarded Kshs. 120,000 × 7 = Kshs. 840,000. Salary for September 2025 77. The notice was effective from 1st September 2025, and the Claimant's employment therefore subsisted to 30th September 2025. She was sent on "terminal leave" for that month at the Respondent's direction, and she is entitled to be paid for it. The Respondent does not dispute this. It pleaded that the Claimant was invited to clear so that her terminal dues could be tabulated and paid, and in its submissions it acknowledged that it was willing to pay her salary for September 2025. The claim is allowed at Kshs. 120,000. One month's salary in lieu of notice 49

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Elrc Cause No. E012 Of 2026 78. The Respondent contends that notice was given and that this claim is therefore spent. I do not agree. A notice period is a period during which the employment subsists and the employee is paid, so that she may find her feet. Here, the Claimant was barred from working from the very first day of the notice, the Respondent's clearance form recorded that she had ceased to be in its employment with effect from 1st September 2025, and she was not paid for the month. A notice for which nothing was paid is no notice at all. Section 40(1)(f), in any event, requires that the employer "has paid" the employee not less than one month's notice or one month's wages in lieu of notice. That was not done. The claim is allowed at Kshs. 120,000. Severance pay 79. Section 40(1)(g) entitles an employee declared redundant to severance pay at the rate of not less than fifteen days' pay for each completed year of service. The Claimant served from 28th August 2023 to 30th September 2025, two completed years. Her severance pay is (Kshs. 120,000 ÷ 30) × 15 × 2 = Kshs. 120,000. The Respondent 50

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Elrc Cause No. E012 Of 2026 acknowledged in its submissions that the Claimant is entitled to severance pay in that sum. Accrued leave 80. Clause 8.1 of the contract entitled the Claimant to twentyone working days of annual leave with full pay, and section 40(1)(e) required any leave due to her to be paid off in cash. The Respondent did not contend that she had taken her leave, and it produced no leave records, which it was obliged to keep under section 74 of the Act. The period of "terminal leave" in September 2025 was, by the Respondent's own treatment, the notice period, not a discharge of accrued annual leave. The claim for 21 days is allowed at (Kshs. 120,000 ÷ 30) × 21 = Kshs. 84,000. General damages 81. The Claimant sought general damages, and in her pleadings also spoke of punitive and exemplary damages. Compensation under section 49(1)(c) is the remedy the Employment Act provides for the injury occasioned by an unfair termination, and the circumstances that would ground a separate award of general damages have already been taken into account in assessing it. A further 51

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Elrc Cause No. E012 Of 2026 award would amount to compensating the Claimant twice for the same injury. No basis has been laid for punitive or exemplary damages. This head is declined. Certificate of service 82. Section 51 of the Employment Act obliges an employer to issue a certificate of service to an employee whose employment has terminated. The obligation is unconditional; it is not contingent on clearance. The Respondent states that the certificate is ready. It shall be issued to the Claimant within thirty (30) days of this judgment. The lesson plan book 83. The claim for the return of the Claimant's lesson plan book was raised in her witness statement and submissions, but it was not among the prayers in the Statement of Claim. The Respondent has, in any event, stated on record that it has no claim over the Claimant's personal effects and that she is free to collect the book. I make no order on it beyond recording that position. Costs and interest 52

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Elrc Cause No. E012 Of 2026 84. Costs follow the event. The Claimant has substantially succeeded and is awarded the costs of the suit. Interest shall accrue on the sums awarded at court rates from the date of this judgment until payment in full. G. DISPOSITION 85. In the upshot, judgment is entered for the Claimant against the Respondent in the following terms: (a) A declaration is hereby issued that the termination of the Claimant's employment by the Respondent was procedurally unfair and unlawful; (b) The Respondent shall pay the Claimant the following sums: (i) Compensation under section 49(1)(c) of the Employment Act, being seven (7) months' gross salary: Kshs. 840,000; (ii) Salary for September 2025: Kshs. 120,000; (iii) One month's salary in lieu of notice: Kshs. 120,000; (iv) Severance pay: Kshs. 120,000; 53

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Elrc Cause No. E012 Of 2026 (v) Accrued leave of 21 days: Kshs. 84,000; Total: Kshs. 1,284,000; (c) The sums in (b) above shall be subject to statutory deductions, if any, applicable in law; (d) Interest shall accrue on the sums in (b) above at court rates from the date of this judgment until payment in full; (e) The claim for Kshs. 4,080,000 for the unexpired term of the contract, and the claim for general damages, are dismissed; (f) The Respondent shall issue the Claimant with a certificate of service in terms of section 51 of the Employment Act within thirty (30) days of this judgment; and (g) The Respondent shall bear the costs of the suit. It is so ordered. DATED, SIGNED AND DELIVERED at MOMBASA this 30th day of September 2026. 54

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Elrc Cause No. E012 Of 2026 ……………………………………………………. OCHARO KEBIRA JUDGE 55

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