1. The Claimant is a trade union registered under the Labour Relations Act to represent the interests of all unionisable employees in the engineering sector as more specifically outlined in the membership clause of its constitution.
2. The Respondent is a company registered under the laws of Kenya and engages in business in Kenya. Its employees are members of the Claimant.
3. The Claimant and the Respondent have a valid and subsisting recognition agreement signed on 1st July 2020 and have previously negotiated a collective bargaining agreement (CBA).
The Claimant’s Case
4. Vide its Memorandum of Claim dated 27th May, 2025, the Claimant avers that the Respondent posted an illegal undated redundancy notice on the staff notice board without notifying the Claimant and the Labour Office as required by law.
5. The Claimant further avers that the Respondent had been deducting and remitting union dues based on check off forms served upon it by the Claimant until 2019 when it continued deducting union dues but failed to remit the same to the Claimant. That this prompted the Claimant to report a trade dispute which was resolved by an agreement in which the Respondent was to commence remittance of monthly union dues from March, 2022.
6. The Claimant avers that the Respondent’s intended redundancy is illegal as the Claimant was not notified of the extent and number to be declared redundant. That the said redundancy is intended to defeat justice in the ongoing cases between the parties being Cause No. E035 of 2024 and Cause No. E004 of 2025.
7. The Claimant avers that the redundancy notice is addressed to all employees and only copied to the Claimant and Ministry of Labour instead of being addressed to the Claimant and Ministry of Labour at least one month before any notification is issued to the employees as required by law.
8. The Claimant avers that the Respondent’s action violates Articles 41 and 47 of the Constitution on fair administrative action and section 41 of the Labour Relations Act.
9. The Claimant prays for the following remedies against the Respondent: -
a) THAT, the Honourable Court do and hereby deem fit and find the Respondent’s no of redundancy to be unfair, unlawful and unprocedural and declare it NULL and VOID.
b) THAT, the Honourable Court do and hereby issue an order against the Respond not to declare any of the Claimant's member redundant without following the par CBA clause 21 and section 40 of the Employment Act, 2007 to the latter.
c) THAT, in the alternative the Honourable Court do and hereby issue an Order aga the Respondent to pay any of the Claimant's member declared redundant 12 months salary for unprocedural and unfair redundancy, severance pay in line with clause (21) (iv) of the parties CBA, service gratuity in line with clause 26 of the parties pay lieu of Notice in line with Clause 20 of the parties CBA, Annual leave/pro-rata leave travelling allowance in line with clause 8 & 12 of the parties CBA and issue with certificates of service.
d) the cost of the suit to be met by the Respondent.
e) THAT. any other Relief the Honourable Court may deem fit to grant.
10. Together with the Memorandum of Claim the Claimant filed a Notice of Motion in which it sought the following prayers: -
a) THAT, this Application be heard ex-parte in the first instance and certified as urgent and heard on priority basis.
b) THAT, the Honourable Court do and hereby issue a temporary Order against the Respondent from proceeding with any redundancy of the Claimant's members on the basis of her illegal undated notice posted to the staff Notice Board pending the hearing and determination of this Application.
c) THAT, any other Relief the Honourable Court may deem fit to grant.
d) THAT, the cost of this Application be met by the Respondent herein.
11. Upon considering the application which was filed under certificate of urgency, the court issued orders as follows:
a) The application dated 27/5/2025 is certified urgent and is fixed for inter parties hearing on 16/6/2025.
b) In the meantime the notice of redundancy placed on the notice board of the Respondent and which is undated is suspended pending inter-parties hearing of the application.
c) Applicant to serve the Respondent forthwith.
d) Respondent to file response to application at lease 48 hours before the hearing date.
12. The Respondent filed responses to both the memorandum of claim and the application. In the replying affidavit of Vincent Kemboi, the Respondent’s accountant, he deposes that the application is incompetent and a gross abuse of the court process as the Claimant is not entitled to any of the reliefs sought in the motion dated 27th May, 2025 together with the supporting affidavit.
13. Mr. Kemboi deposes that the Respondent issued proper notice in accordance with section 40 of the Employment Act. That the employees acknowledged the notices served upon them.
14. It is deposed that the Respondent underwent a re-organization due to managerial challenges. Further, that the Respondent suffered loss of business that had progressed to the point that the Respondent was experiencing cash flow crisis, with the Respondent’s bankers making demands for payment.
15. It is deposed that the Claimant was informed of the redundancy through one of its officials by the name of Anthony Barasa on 17th May, 2025. That it was apparent that there was no coordination between the officials of the Claimant.
16. It is deposed that the notices issued to the 2 affected employees clearly stated that they would be entitled to terminal benefits in line with the Employment Act and relevant collective agreement (CBA).
17. It is deposed that Clause 28 of the CBA was not violated as the 2 employees signed the Respondent’s copies in acknowledgement of receipt.
18. It is deposed that the Labour Office was notified as the Representative of the Minister and it was not necessary to notify the Minister in person.
19. It is deposed that not all the employees of the Respondent are being let go on account of redundancy as the Respondent still needs skeleton staff to keep running as a comprehensive revival plan is put in place.
20. It is deposed that the Respondent has no intention of defeating justice; that the Claimant has developed a penchant to file multiple suits without just cause. The Respondent avers that the Claimant has not named any employees that are aggrieved.
21. In the Respondents Statement of Response and Counterclaim dated 24th June, 2025, the Respondent denies that the notice it posted on the staff notice board was illegal and avers that the notice of redundancy was sent to the Claimant and Ministry of Labour. The Respondent further avers that it has always deducted and remitted union dues as required by law. It denies the existence of a trade dispute. It further denies the existence of an agreement on remittance of union dues from March, 2022.
22. The Respondent reiterates that it served the redundancy notice upon the Claimant through Anthony Barasa on17th May, 2025, issued a general notice to employees and notified the Ministry of Labour.
23. The Respondent avers that the Claimant is a vexatious litigant and has filed several related cases against the Respondent.
24. The Respondent further avers that one of the two employees issued with redundancy notice Tom Muga is a member of the Claimant while the second employee issued with the notice, Ferdinand Otieno, is not a member of the Claimant union. It avers that the notice period in the redundancy notice is 3 months.
25. The Respondent avers that the Claimant is not entitled to the reliefs sought in the Memorandum of Claim. It prays that the same be dismissed with costs.
26. The Respondent also filed a Counterclaim in which it avers that the Claimant is being unreasonable, high handed and blatantly harassing the Respondent by filing several interrelated suits in quick succession. That the Claimant seems to have a hidden agenda.
27. The Claimant avers that business is bad, that its business has shrunk over the past two to three years, that it has experienced cash flow problems in the recent past, that it has had managerial challenges necessitating reorganization and as a result had to release two employees as the wage bill was unsustainable.
28. The Respondent prays for the following reliefs in the counter claim:
a) A Declaration that the actions of the Respondent in the Counterclaim is unreasonable in the current circumstances.
b) A Declaration that the Claimant in the Counterclaim
i. Is experiencing a cash flow problem
ii. Is experiencing low business and therefore is unable to maintain a large work force.
iii. Has lost its previous client base
iv. Due to the decreased cash flow and low business, some employees have been rendered Redundant and consequently laid off and more will be aid off should the situation not improve.
v. Is servicing Bank overdrafts and loans which cumulatively and currently stand at close to Ksh. 243,000,000.00
vi. The Claimant in the Counterclaim should be given time to get back on track and on its feet so that those employees who have been rendered redundant may be reconsidered back for employment in line with Clause 21 (e) (v) of the Collective Bargain Agreement.
c) A Declaration that the Respondent in the Counterclaim's current demand is untenable, inaccurate and ill advised.
d) A Declaration that the Claimant in the Counterclaim's decision to declare redundancy was made in good faith.
e) Costs of the suit & the Counterclaim.
f) Any other and further relief that this Honourable Court shall deem just and expedient to grant.
29. The suit was disposed of by way of written submissions. The Claimant’s submissions are dated 6th August, 2025 while the Respondent’s submissions are dated 4th September, 2025.
30. In the submissions the parties largely adopted and reiterated the averments in their pleadings.
Analysis and Determination
31. I have considered the pleadings, and the parties’ submissions. The issues that arise for determination are: -
i. Whether the redundancy notices by the Respondent complied with the provisions of the law and the parties’ CBA;
ii. Whether the Claimant’s prayers are merited.
iii. Whether the Counterclaim is merited.
iv. What orders should issue
Whether the Respondent’s redundancy notices complied with the law and the parties’ CBA
32. Section 40(1) of the Employment Act provides for redundancy procedure as follows:
40. Termination on account of redundancy
(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;
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 to an employee declared redundant severance pay at the rate of not less than fifteen days pay for each completed year of service.
33. Further, the parties’ CBA provides for redundancy as follows:
a. Definition of the purpose of this Agreement - Redundancy shall mean loss of employment through no fault of the employee concerned occasioned by reorganization, mechanization and lack of orders.
b. In the event of redundancy, the company shall inform the union as the reasons and the extent of intended redundancy
c. Should both parties agree, such redundancy should be effected and the principle of “last in first out” shall be in particular categories of employees affected subjected to all other factors such as skills, relative merits ability being equal.
d. Alternative Employment
In an effort to avoid redundancy the company, through mutual agreement with employee who is affected by redundancy and employer may arrange for suitable alternative employment within the company, should alternative employment not
e. be accepted by the employee, then he shall be declared redundant and therefore entitled to payment in accordance with clauses of this Agreement.
f. Entitlement of Redundant Employee
The redundant employee shall be entitled to:-
(i) The normal notice or pay in lieu as defined in this Agreement.
(ii) Payment of wages, overtime and any other remuneration which may be due to him calculated up to the time an employee ceases to work.
(iii) Pro-rata leave and leave allowance entitlement in accordance with this Agreement.
(iv) The redundant employee shall be severance pay which he/she will qualify after completion of twelve continuous service with the company from time of engagement as follows: -
1 to 5 years of service -21 days per each year completed.
6- 10 years of service - 30 days per each year completed.
Over 10 years of service -35 days per each year completed.
(v) Employees declared redundant will be given priority for re-employment When a v arises provided that he/she meets the qualifications.
34. The impugned notice of redundancy issued by the Respondent and posted on the notice board is reproduced below:
R.M PATEL & PARTNERS LTD
REDUNDANCY NOTICE
To: All Employees
We regret to inform you that, due to ongoing financial constraints and a significant slowdown in business operations, it has become necessary to restructure the company. As a result, certain positions have been declared redundant.
Affected employees will be notified individually, and the termination of employment will be on the grounds of redundancy. Please be assured that this decision was not made lightly. We have thoroughly explored all possible alternative to minimize the impact on our staff.
However, after careful evaluation, we have concluded that this course of action is essential to ensure the long-term sustainability of the company.
We sincerely appreciate your understanding and continued professionalism during this challenging time.
sincerely,
Rajeni M. Patel
signed
Director
Cc
Kenya Engineering workers union (KEWU)
Ministry of Labour
35. On 23rd May, 2025 the Respondent issued redundancy notice to two employees as reproduced below:
R.M PATEL & PARTNERS LTD
23/05/2025
FERDINAND OTIENO
RE: TERMINATION OF EMPLOYMENT
Following a through review of the company’s operational needs and financial sustainability your position has been identified as one of those affected by the redundancy process.
Accordingly, this letter serves as a formal notice that your employment with RM Patel and Partners Ltd will be terminated on the grounds of redundancy, effective three months form the date of this letter.
Please be assured that the decision is in no way a reflection of your performance or conduct, but rather a necessary organization response to financial constraints and shrink in business beyond our control.
You will be entitle d to terminal benefits in line with employment act 2007 and the relevant collective bargaining agreement.
Regards
Signed
Rajeni M. Patel
Director
36. It is these notices that the Claimant has taken issue with. As can be seen from the notice to all employees, the notice is not dated and is not addressed to the Claimant and Labour Officer as required by law. It is however copied to the Claimant and the Labour Officer. The Claimant stated that the notice was never sent to the Claimant while the Respondent insists that it served the notice upon the Claimant through its representative, one ANTHONY BARASA.
37. As provided in the CBA, there is requirement that the Respondent informs the Claimant of any intended redundancy. The CBA provides for consultation where it states “should both parties agree, such redundancy should be effected…”.
38. The consultation is also implied in section 40(1)(a) where the employer is required to give notification of intended redundancy at least one month before the redundancy is effected as was held in the case of Kenya Airways Limited v Aviation & Allied Workers Union Kenya & 3 Others [2014] KECA 404 (KLR) the Court of Appeal Maraga JA as he then was opined:
52. As I have said, besides this Convention, the requirement of consultation is implicit in the principle of fair play under Section 40(1) of the Employment Act itself and our other labour laws. The notices under this provision are not merely for information. Read together with Part VIII of the Labour Relations Act, 2007 which provides for reference to the Minister for Labour of trade disputes, including those related to redundancy (see Section 62(4)) for conciliation, I am of the firm view that the requirement of consultations implicit in these provisions. The purpose of the notice under Section 40(1) (a) and (b) of the Employment Act, as is also provided for in the said ILO Convention No. 158-Termination of Employment Convention, 1982, is to give 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. This means that if parties put their heads together, chances are that they could avert or at least minimize the terminations resulting from the employer’s proposed redundancy. If redundancy is inevitable, measures should to be taken to ensure that as little hardship as possible is caused to the affected employees. In the circumstances, I agree with counsel for the 1st respondent that consultation is an imperative requirement under our law. Mr. Oraro’s criticism of the learned trial Judge’s reliance on the UK Employment Appeals Tribunal’s decision in Mugford v. Midland Bank, UK Employment Appeal Tribunal,10 and the treatise by Rycroft and Jordan, - “A guide to the South Africa Labour Law” both of which dealt with the requirement of consultation, was therefore unfair. Those were authorities on comparative jurisprudence which the learned Judge was perfectly entitled to make reference to and where appropriate rely on.
53. In this case, although consultation was not provided for in the Collective Bargain Agreement (CBA) of the parties, it was nonetheless contained in the 10 App No. 760 of 1996 IRLR 208 (1997) Recognition agreement between the parties dated 18th December 2008…
… What concerns me is the fact that both the parties regarded consultation as an important step in the redundancy programme…. redundancy must be founded on a genuine operational need and implemented through a transparent and fair process involving proper notice and consultation.
39. The Respondent made several errors. First, the notice of redundancy is addressed to employees when section 40(1) (a) clearly stipulates that where an employee if a member of the union, the notification is made to the union and labour officer. The Respondent’s notice was to all the employees and there is no evidence that the same was received by Ministry of Labour which it is copied to. It should have been addressed to the County Labour Officer.
40. Secondly, the notice is undated. The date of a redundancy notice is important as the employer is required to issue the notification at least one month before the redundancy is effected. In this case it is not possible to tell from the notice whether it was issued before the letters to the employees.
41. Thirdly the Respondent stated that it served the Respondent through Mr. Barasa, the shop steward. Service upon the Claimant cannot be effected through an employee of the Respondent. The Recognition agreement between parties always specify how notices to the parties are to be served. In this case the shop steward was entitled to his notice as a shop floor representative while the union was entitled to its copy as the union. There was thus no proper serve upon the Claimant.
42. The letter of redundancy further states that the two employees declared redundant were to serve 3 months’ notice. Section 40(1)(f) envisages pay in lieu of notice.
43. From the foregoing I find that the Respondent did not comply with both section 40 and the parties CBA in issuing the notices of redundancy.
Whether the Counterclaim is merited
44. The Claimant prayed that the court finds the redundancy notices to be unlawful, unfair and unprocedural and declare them null and void. Having found that the redundancy notices did not comply with the provisions of the Employment Act and the parities’ CBA, I declare the redundancy notices unprocedural and therefore unlawful.
45. The Claimant further prayed for an order that the Respondent should not declare any Claimant’s member redundant without following the parties CBA. This goes without saying as non-compliance would be in breach of the law and the parties CBA.
46. The Claimant prayed in the alternative that the Respondent pays any of the Claimant’s member declare redundant 12 months’ salary for unprocedural redundancy, severance pay under clause 21 of the CBA, service gratuity in line with Clause 26 of the CBA, pay in lieu of notice under Clause 8 of the CBA, annual leave and prorata leave travelling allowance under clauses 8 and 12 of the CBA and issue them with certificates of service. Having stopped the redundancy notices following the Claimant’s application filed with the Claim, there was no redundancy and this prayer is redundant.
Whether the Counterclaim is merited
47. On the prayers in the counter claim, the Respondent did not substantiate its claims of financial distress as it did not adduce any evidence in respect of the same. I find that the prayers in the counter claim are more of complaints against the Claimant and do not constitute any cause of action capable of being remedied by the court. The same are matters that should be resolved through consultations between the parties.
48. In the circumstances, the Respondent has not demonstrated any basis upon which the declarations sought in its counter claim can be granted. The Counterclaim is therefore without merit.
What reliefs should issue?
49. The court makes the following final orders:
(i) The notices of redundancy dated 23rd May 2025 addressed to Ferdinand Otieno and Tom Muga are hereby declared unprocedural and there null and void.
(ii) The Respondent is at liberty to carry out redundancies provided the same complies with both section 40(1) of the Employment Act and the parties CBA.
(iii) The counterclaim discloses no cause of action and is dismissed.
(iv) Each party shall bear its costs.
DATED, SIGNED AND VIRTUALLY DELIVERED
THIS 11TH DAY OF DECEMBER, 2025.