Choru v Camusat Kenya Limited (Cause E665 of 2021) [2026] KEELRC 278 (KLR) (29 January 2026) (Judgment)

Choru v Camusat Kenya Limited (Cause E665 of 2021) [2026] KEELRC 278 (KLR) (29 January 2026) (Judgment) Neutral citation: [2026] KEELRC 278 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Cause E665 of 2021 JW Keli, J January 29, 2026 Between Esther Choru Claimant and Camusat Kenya Limited Respondent Judgment 1.Vide a memorandum of claim dated the 29th of July 2021, the Claimant sued the Respondents and sought the following Orders:-a.A declaration that the Claimant's termination was unfair, unlawful and unprocedural;b.A declaration that the Claimant’s termination was discriminatory and violated her Constitutional rights under Articles 27, 41 and 47 of [the Constitution](/akn/ke/act/2010/constitution) of Kenya, 2010.c.Compensation for unlawful, unfair and unprocedural termination of employment assessed at twelve (12) months' salary amounting to Kes.1,917,763.20d.An order for re-computation and payment of the rightful severance pay to the Claimant at the rate of 20 days for each year worked.e.General damages for discrimination and victimisation in the sum of Kes.1,500,000.00f.Costs of this suit.g.Interest on c) and d) at court rates from the date of judgment until payment in full.h.Any other remedy or relief that this Honourable Court may deem just and expedient to grant. 2.The Claimant, in support of the claim, filed her witness statement dated 22nd July 2021, and a list of documents dated 29th July 2021. 3.The Respondent entered an appearance through the law firm of O & M Law Advocates on 21st September 2021 and filed a response to the memorandum of claim dated 2nd June 2022. In support of their response, they filed a witness statement of Robert Njogu dated 25th July 2023, and a list of documents dated 25th July 2023 with the bundle of documents attached. they later filed two further witness statements of Simon Mburu, dated 18th June 2025, and of Aidah Mbithe of the same date. 4.To counter the Respondent’s response, the Claimant filed a reply dated 18th November 2022. Hearing and evidence 5.The claimant’s case was heard on 19th March 2025, where she testified on oath, adopted her witness statement, and produced her documents under the list dated 22nd July 2021. She was cross-examined by counsel for the respondent, Mr Wachira, and re-examined by her counsel on the same date. 6.The respondent’s case was heard on the 16th July 2025, where the witness was Simon Mburu, a human resources officer of the respondent. He testified as a witness of fact under oath and adopted his witness statement dated 18th June 2015 as evidence in chief. He produced the respondent’s documents under the list dated 25th July 2025 as R-exhibits 1-8. The witness was cross-examined by counsel for the claimant, Ms Weru and re-examined by their counsel on even date. The Claimant’s case in summary 1.The Claimant’s case is that she was employed by the Respondent a Project Coordinator in charge of the Respondent's Wananchi Fiber Project vide an Employment Contract dated 1st May 2013, at a monthly basic salary of Kshs. 132,018.00 plus a daily allowance of Kshs. 200.00. Over the years, the Claimant was positively appraised and promoted through the ranks, being assigned two major clients in the years 2017 and 2019 respectively, namely Simbanet Ltd and Liquid Telecom under their various projects, namely Simbanet FTTx, Liquid Telcom Maintenance, Liquid Telcom Installations, and Liquid Telcom special projects. The Claimant’s salary was reviewed to Kshs.159,813.00 by a letter dated 25 August 2017. 8.The Claimant’s troubles began on 26 July 2019, when the Respondent's Human Resource Manager during a brief meeting, informed her that she was part of a group of employees wo were scheduled to be declared redundant. She was told that because she was handling two active projects at the time, the Managing Director had directed the Human Resource Manager to hold on to her redundancy letter until they held a meeting to review the status of her role. In direct contract to the statements made by the Human Resource Manager to the Claimant, she was issued with a letter of termination of employment on account of alleged redundancy on the same day, 26th July 2019. In the letter, the Respondent stated that the Respondent Company was in the process of restructuring its operations in Kenya through, among other methods, rationalization of the Respondent Company's employee structure, which rendered the Claimant’s position with the Respondent Company redundant. 9.On 27th July 2019, by an email dated the same day, the Respondent's Country Managing Director Mr. Fabrice Gaussen, emailed the Respondent's client, Liquid Telecom, and falsely informed them that the Claimant had terminated her employment with the Respondent. He further advised the client of the team that would be handling their account, a clear indication that the project was still ongoing and therefore the Claimant’s role in the project was still available. 10.The Claimant discloses that some other employees of the Respondent were also issued with termination letters, and filed, through their trade union, an application seeking to stop the redundancy process in ELRC Cause No. 502 of 2019. The Respondent's attempt to declare some positions redundant, including the Claimant’s, was halted following issuance of interim orders by the Court. Subsequently, by a Ruling delivered on 6 November 2020, the Court allowed the Respondent to proceed with the redundancy process as long as the same was conducted in accordance with the law. 11.After the court orders, the Claimant states that she continued to serve the Respondent until 12th February 2021 when the Respondent terminated her employment with immediate effect via a termination letter of the same date, on grounds of alleged redundancy. Prior to the issuance of the said termination letter, the Respondent had not at any time issued the Claimant with a notice of the intended redundancy or held discussions with her informing her that her position was due to be declared redundant. Since the issuance of the previous redundancy letter on 26th July 2019, the Respondent had continued engaging the Claimant’s services and paying her salary and related benefits with the implication that the July 2019 proposed redundancy had been withdrawn. 12.The Claimant later learned that on 11th November 2020, the Respondent had issued a letter to the County Labour Office notifying the Labour Office that it intended to declare the Claimant’s position redundant. She was however never informed of the intended redundancy until the issuance of her termination letter as aforesaid. 13.The Claimant complains that no specific notice was issued to her either in 2019 or in 2021 informing her of the intended redundancy. Further, while the letter dated 11 November 2020 indicates that the Respondent intended to initiate discussions or consultations with the Claimant prior to declaring her redundant, no such discussions or consultations were ever held to demonstrate that her role was no longer required in the business, to discuss the rationalization of the Respondent’s employee structure, or to consider what other role the Claimant could take up in the Respondent company under the restructured model. She was also not informed of the criteria that was employed in declaring her position redundant. 14.The Claimant is adamant that, contrary to the Respondent's assertions that her position was redundant, the Claimant’s position remains relevant and active, and the same has not been abolished. The Claimant clarifies that one of the projects that she previously headed is still running under the supervision/coordination of George Nguyo and the three-year project has a possibility for renewal in 2022. The Respondent also has other various projects that it continues to undertake which have project coordinators or positions whose roles are substantively similar to the services the Claimant was providing to the Respondent. In fact, the Respondent has recruited other project managers and promoted supervisors to take up project managers roles, which positions the Claimant was capable of executing. The Claimant was not given an option or opportunity to apply for these positions before the Respondent declared her position redundant. 15.The Claimant’s case is that the Respondent's decision to terminate her employment contract on account of redundancy was not justified. The redundancy was a scapegoat used by the Respondent to terminate her employment. Prior to the redundancy, the Respondent had subjected the Claimant to numerous incidents of discrimination where she was deliberately singled out and when she raised concerns, they were not addressed. Instances of the Respondent's discrimination against the Claimant include: failing to invite her for a training of the project managers and some of the members of the design team; failing to consider her for the end year bonus in 2016 despite meeting her target; and frustrating the Claimant after she returned from maternity leave by declining to re-assign her back to her role as acting Construction Manager and instead demoting her to a Project Coordinator. 16.The Claimant states that in the computation of her severance pay, the Respondent applied the rate of 15 days' pay for every year of service while her counterparts who were declared redundant within the same period were paid severance at the rate of 20 days' pay for each year worked. The Respondent continued to discriminate against the Claimant even in the computation of the terminal dues. The Claimant is categorical that the Respondent specifically targeted and victimised her with no justifiable cause. She was subjected to unfair labour practices, and the Respondent's termination of her employment was unlawful since it was not based on valid reasons and was procedurally unfair. Respondents’ case in brief 17.The Respondent admits that the Claimant was its employee, having been employed as a Project Co-ordinator vide a Contract of Employment dated 1st August 2013. 18.It is the Respondent’s case that sometime in the year 2019, the Respondent's customers stopped allocating it work, an unfortunate turn of events that necessitated a redundancy process that would affect the Claimant and other employees of the Respondent. The Respondent commenced a lawful redundancy process which was halted by the Employment & Labour Relations Court through its orders issued on 1st August 2019 in ELRC Cause 502 of 2019 Communications Workers Union v Camusat Kenya Limited pursuant to the Union's interlocutory application dated 31st July 2019. The Union’s application was eventually dismissed on 6th November 2020 for failure to meet the legal threshold for grant of the orders sought. 19.In its ruling dismissing the application, the Honourable Court allowed the Respondent to proceed with the redundancy and reserved its decision on the propriety of the redundancy process for the hearing and determination of the main suit. It is not clear from the Respondent’s documents whether the aforesaid suit has now been heard and determined. 20.It is stated that the Respondent's customers did not allocate any new work to it during the subsistence of the interim orders stopping the redundancy process. As at 6th November 2020, the circumstances that had necessitated the decision to declare the Claimant's position redundant had not changed. Consequently, the Respondent once again communicated its intention to declare the Claimant's position redundant to the County Labour Office on 11th November 2020. In the subsequent months of December 2020 and January 2021, it held extensive consultative managerial consultations on how best to redeploy the Claimant as it anticipated new work from its customers. However, given the Claimant's capabilities and the fact that the Respondent did not receive the anticipated work from its customers, the Respondent had no option but to proceed with the redundancy. 21.The Respondent states that they held a meeting with the Claimant on 5th February2021 and informed her of the intended redundancy and how it would affect her. The Claimant was therefore fully aware that the Respondent was undergoing a restructure necessitated by a downturn in business and that her position and employment would be affected. The Respondent insists that it issued the relevant notice to the County Labour Office and personally notified the Claimant of the intended redundancy prior to the termination of her employment on account of redundancy on 12th February 2021. They also confirm that the Claimant was paid all her terminal dues including notice pay as particularized in the letter dated 12th February 2021.12. It is stated that the position of Project Co-ordinator previously held by the Claimant no longer exists in the Respondent’s employee structure. 22.In response to the Claimant’s averment that she worked from July 2019 to February 2021, the Respondent states that the Claimant neither reported to work nor was she assigned any duties by the Respondent during the period between August 2019 and the date of her termination in February 2021, but she received her salary during this period. Determination Issues for determination 23.The claimant outlined the following issues for determination -a)Whether the termination of the Claimant’s contract on grounds of Redundancy was unfair and unprocedural; andb)Whether the Claimant is entitled to the reliefs sought. 24.The respondent outlined addressed the above issues by the claimant plus whether there was discrimination. 25.The court adopted the issues by the parties as follows-a)Whether the termination of the Claimant’s contract on grounds of Redundancy was unfair and unprocedural; andb)Whether the Claimant is entitled to the reliefs sought.c)Whether there was proof of discrimination Whether the termination of the Claimant’s contract on grounds of Redundancy was unfair and unprocedural; - Claimants’ submissions 26.Whether the Claimant’s termination on account of Redundancy was unfair and unprocedural- Lack of Substantive Justification - It is trite law that for an employer to justify termination on the ground of redundancy, they must demonstrate that the loss of employment was an involuntary process occasioned by factors beyond their control, leaving them with no option but to initiate measures that inevitably result in loss of employment. This principle was affirmed by the Court of Appeal in Kenya Airways Limited v Aviation & Allied Workers Union Kenya & 3 Others [2014] eKLR. Section 2 of the [Employment Act](/akn/ke/act/2007/11) describes redundancy as follows: “redundancy means 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 as abolition of office, job or occupation and loss of employment;” Under Section 43 (1) read together with Section 45 (1) and (2) of the [Employment Act](/akn/ke/act/2007/11) places the legal and evidential burden on the employer to prove the reasons for termination were valid, they genuinely existed at the time, and they were based on the based on the operational requirements of the employer. The section states:- “In any claim arising out of termination of a contract, the employer shall be required to prove the reason or reasons for the termination, and where the employer fails to do so, the termination shall be deemed to have been unfair within the meaning of section 45.” We submit that the Respondent did not demonstrate to the required standard or at all that there existed valid reasons for redundancy for the following reasons:, a) Continuity of Liquid Telcom business. By an email dated 27 July 2019, (see page 10 of the Claimant’s documents) issued immediately after the termination of the Claimant’s contract on 26 July 2019, the Respondent’s Country Managing Director informed one of the Claimant’s clients, Liquid Telecom, of business continuity measures and introduced a team that would continue performing the Claimant’s duties. The Claimant testified, both in examination-in-chief and cross-examination, that the individuals named in the email—namely, George Nguyo (Operations and Maintenance) and Patrick Kamau (Operations Director)—assumed her role as Project Coordinator. This fact was confirmed by the Respondent’s witness during cross examination. In the same email, the Respondent’s Managing Director invited the client to further discussions on business expectations, thereby underscoring business continuity. At no point did the Respondent communicate or even suggest that it was ceasing business with the client. The Respondent’s confirmed that to date Liquid is still a client of the Respondent. This email is clear evidence of the business continuity between the Respondent and Liquid Telecom and that the Claimant’s role remained relevant. The Claimant’s role was not abolished but rather her responsibilities were merely reassigned to her colleagues. The Respondent’s witness confirmed in cross examination that notices of termination were issued to the persons named in the said email. It is our submission therefore that the Claimant was unfairly and unlawfully singled out from her team under the guise of redundancy. 27.Alleged closure of Simba Net Project. The Respondent alleged in its defence that one of the reasons informing the decision to declare the Claimant redundant was the closure of the Simbanet project. However, a review of the emails produced by the Respondent shows that financial challenges with the Simbanet project only arose around August 2020, when the Respondent wrote to Simbanet expressing concerns about the viability of the business. The Respondent’s own witness confirmed that between 2019 and 2020, the Simbanet business was still ongoing with the same team the Claimant had been working with. Notably, during this period, the Claimant was deliberately excluded and not assigned any roles. It is our further submission that the Claimant was employed as the Company’s Project Coordinator under her contract of employment and was not tied to any single project. Her role, by its nature, was broad and flexible, encompassing coordination of multiple projects as assigned by the Respondent. Consequently, even if the Simbanet project had indeed been closed, as alleged by the Respondent, this could not justify declaring the Claimant redundant. In line with her contractual obligations, she ought to have been reassigned to other ongoing projects, including those she had previously coordinated such as Wananchi Fiber and Liquid Telecom. The Respondent’s failure to reassign her any other project was a clear indication that the redundancy was neither genuine nor inevitable but was instead targeted and discriminatory. Further, none of the other employees who were engaged in the Simbanet or Liquid projects namely, George Nguyo (Operations and Maintenance), Patrick Kamau (Operations Director), and Anne Nzioki (Admin, Commercials) were declared redundant. Instead, they were retained and continued to work on other ongoing projects including during the period when the Claimant was not allocated any work and continued to receive her salary. This selective treatment underscores that the alleged redundancy was neither genuine nor justified. There were no valid operational reasons necessitating the Claimant’s termination; rather, the process was deliberately targeted at eliminating the Claimant under the guise of redundancy. For the foregoing reasons, we submit that the Respondent failed to discharge its evidentiary burden of proving that there was a valid basis for restructuring its business and, further, that such restructuring (if at all it occurred) led to the abolition of the Claimant’s position as alleged. In addition, no evidence was adduced to demonstrate why only the Claimant’s position was declared redundant while other positions were retained. We rely on the following decisions: a. In the Court in the case of Andrew Ondiek vs. DHL Supply Chain Limited [2021] KEELRC 864 (KLR] the court stated as follows: [25] “For avoidance of doubts, redundancy is a form of termination and therefore Sections 43, 45, 47 and 49 of the Act apply in cases as redundancy just like in other forms of termination. Therefore, Section 40 provides for an ideal situation, where the reason for termination or redundancy is based on a valid and lawful reason. Once an employer has a valid and lawful reason(s) for termination on redundancy, such an employer must then comply with Section 40 of the Act….. [26] The starting point in this matter therefore is to first critically examine the reason given by the Respondent for terminating the Claimant on account of redundancy before examining if the Respondent indeed complied with the provisions of Section 40 of the Act in terminating the Claimant. Under Section 43 of the Act, the Respondent as the employer is under obligation to prove the reason(s) for termination and that the same was lawful and valid under Section 45 of the Act. As stated above, there is no evidence adduced at all by the Respondent to prove that they were experiencing difficult financial circumstances at the material time which would have caused them to terminate the Claimant on redundancy. What criteria then can this court use to determine if the termination of the Claimant on account of redundancy was valid, fair, just and equitable? In the glaring lack of evidence as demonstrated above this court finds that the termination of the Claimant by the Respondent on account of redundancy was malicious, unfair, unjust, and unlawful. In the circumstances, this court concludes, finds, and holds that the Respondent had no valid and lawful reason(s) to terminate the Claimant on account of redundancy and therefore in terms of substance of the termination the court finds in favour of the Claimant.” We further rely on the case of Nasumaye vs. DHL Exel Supply Chain (K) Ltd [2023] KEELRC 3152 (KLR) where the Court affirmed that redundancy applies to a specific role rather than an individual employee. The Court observed as follows: [75] “Revisiting the statutory definition of the term “redundancy”, it is clear that it is an employee’s role that is declared redundant as opposed to an individual employee. Therefore, redundancy should not be targeted at an individual employee and regard should be had to the position being held by the employee and a consideration made as to whether the said role is superfluous and is to be abolished [104]…the Respondent did not discharge its evidential burden by proving that the Claimant’s position of Control Tower Planner, had been abolished and ceased to exist within its structure.” 18. In light of the foregoing, we submit that the Claimant’s position was never declared redundant nor abolished; rather, her project coordination roles on the same projects were reassigned to existing staff. This shows that the Claimant was unjustly and deliberately singled out for termination, an action that was substantively unjustified and procedurally flawed. We accordingly submit that her termination on account of redundancy was unfair, unlawful, and in violation of her rights under [the Constitution](/akn/ke/act/2010/constitution) and the [Employment Act](/akn/ke/act/2007/11). 28.Failure to follow the due process. Section 40 of the [Employment Act](/akn/ke/act/2007/11) sets out the legal requirements for a fair redundancy process, including prior notification, meaningful consultation and the application of objective selection criteria. In the case of Hesbon Ngaruiya Waigi vs. Equitorial Commercial Bank Limited, the Court held as follows; “Where redundancy is declared by an employer, the procedure to follow is as set out under the provisions of Section 40 of the [Employment Act](/akn/ke/act/2007/11) and where not followed, any termination as a result will be deemed unprocedural and unfair. Any termination of an employee following a declaration of redundancy must be based on the law otherwise the same becomes wrong and if the grounds used to identify the affected employees are not as per the law the same becomes unfair.” On the issue of notice, we submit that it was incumbent upon the Respondent to not only notify the Labour Office of the intended redundancy but also to issue individual notices to all the affected employees, including the Claimant, informing them of the intended redundancy, the reasons thereof, the section criteria adopted and to provide room for meaningful consultation before terminating their contracts as required by Section 40(1)(b) of the [Employment Act](/akn/ke/act/2007/11). The Claimant relies on the case of Barclays Bank of Kenya Ltd & another vs. Gladys Muthoni & 20 others where the Court of Appeal affirmed the trial court’s position that an employer must issue two separate notices in a redundancy process, one notifying employees of the impending redundancy and its reasons, and another formally terminating their employment as follows; [27] “The trial court was of the view that there ought to have been two notices - a specific notice alerting the respondents about the impending redundancy and the reasons therefor, and another one terminating their services. It reasoned as follows: As noted by the Court in Caroline Wanjiru Luzze vs. Nestle Equatorial African Regional Limited, the employer is supposed to give two (2) distinct notices on account of redundancy. Such must be in writing.” .We submit that the Claimant was not accorded a fair hearing as required by law for the following reasons:- a. The Claimant was never issued with a notice of intended redundancy prior to the termination letter dated 12 February 2021, in contravention of the mandatory requirements under Section 40 the [Employment Act](/akn/ke/act/2007/11). b. Although the Respondent alleged that it invited the Claimant for a “Status of Employment Meeting” on 5 February 2021 (see page 10 of the Respondent’s supplementary documents), no evidence was adduced of the meeting’s agenda, minutes or agreed action points. In the absence of such proof, the alleged meeting cannot be said to constitute a fair consultation process. c. The Respondent relies on a notice purportedly sent to the Labour Office dated 11 November 2020 issued almost three months before the termination letter, but which letter was not served upon Claimant. This letter reveals that the decision to terminate the Claimant’s employment had been premeditated as early as November 2020, yet the Respondent deliberately withheld this material information from the Claimant until February 2021 when it issued the termination letter. d. At no point between November 2020 and February 2021 did the Respondent engage in any genuine consultations with the Claimant to mitigate the effects of redundancy or consider alternatives such as redeployment, notwithstanding that her role was not tied to any specific project but was transferable across other projects within the country. In the circumstances, we submit the Claimant was not accorded the due process as provided under Section 40 of the [employment Act](/akn/ke/act/2007/11) and in accordance with the dictates of fair labour practises as provided under [the constitution](/akn/ke/act/2010/constitution). The Claimant relies on the recent decision of the Court of Appeal in The German School Society & another v Ohany & another (Civil Appeal 325 & 342 of 2018 (Consolidated)) [2023] KECA 894 (KLR) where the learned Judges held that consultation is an essential part of the redundancy process, stating as follows; [57] “In essence, consultation is an essential part of the redundancy process and ensures that there is substantive fairness. The employer should ensure that it carries out the process as fair as possible and that all mitigating factors are taken into consideration.” The Court of Appeal further found the termination was unfair for want of consultations as follows; [63] “….It is apparent from the records of these appeals that there was no evidence on record or presented to the trial judge regarding any consultations undertaken in the manner stated hereinabove. We therefore find no fault in the finding by the trial judge that the termination was unfair for want of the consultations envisaged under section 40 of the [Employment Act](/akn/ke/act/2007/11).” 4.In light of the foregoing, the Claimant submits that the termination process on account of redundancy was procedurally flawed and in breach of her statutory rights. The Respondent failed to comply with the mandatory provisions of Section 40 of the [Employment Act](/akn/ke/act/2007/11), including the requirements to issue proper notice of the intended redundancy, to conduct meaningful consultations with the Claimant, and to consider suitable alternatives such as redeployment. The Respondent’s non-compliance with these statutory safeguards rendered the Claimant’s termination unfair, unlawful, and contrary to both the letter and spirit of the law. Respondent’s submissions 29.Substantive Justification - It is common ground that the Claimant was, until her termination, employed in the position of Project Co-ordinator. Vide the Notice of Proposed Redundancy dated 11th November 2020 (found at page 8 of the Respondent’s Bundle of Documents), the Respondent informed the County Labour Office that it was restructuring its operations in Kenya and would, in this regard, declare the position of Project Coordinator – Simbanet Project redundant. 4. At pages 5 – 7 of the Respondent’s Bundle of Documents is email correspondence between the Respondent and Simbanet regarding the end of their engagement. On 25th August 2020, the Respondent’s Operations Director (Camillus) informed the Operations Manager, Simbanet (Irene) that the Respondent had been making losses in support of the project and was unable to support the cost of a Designer and Project Coordinator any further since no business had been forthcoming. Camillus requested Irene to share Simbanet’s business plan and, on 27th August 2020, Irene in her response confirmed the decline in business: “…unfortunately with the current situation worldwide we have not been able to achieve the projections that were interrupted with all that has been going on. We understand your predicament but I am sure you understand our challenges as this is global for now. When we are able to get confirmed orders, we will involve you as our partner.” Camillus would email rrene later that day to say that the Respondent would call the team back from the project as they awaited orders from Simbanet. 6. The authenticity of this email exchange was not challenged at the trial, neither did the Claimant controvert the Respondent’s position that it did not have an available position of Project Coordinator in another project to redeploy the Claimant. In fact, the Respondent’s witness testified that the position of Project Coordinator does not exist in the employee structure anymore. The Claimant argued that she was the Project Coordinator – Liquid Telecom as well, and that the Respondent’s then Country Managing Director reassigned her duties to other persons within the Respondent’s employ vide his email sent to the client on 27th July 2025 (found at page 10 of the Claimant’s Bundle of Documents). The Claimant relied on this email of 27th July 2019 in support of her argument that the Liquid Telecom project was still ongoing and therefore her role (of Project Coordinator) was still available. It is instructive to point out the Claimant did not disclose the source of this particular email to the Court. The email is not addressed to her, neither is she in copy. She did not explain how she got her hands on an email which was purportedly sent a day after her employment was terminated with immediate effect. It is trite that a document from an unverified or unknown source is hearsay and is given little to no probative value. We therefore urge your Ladyship to disregard this email in its entirety. Without prejudice to the foregoing, we submit that the Respondent’s witness satisfactorily explained the context and purport of the aforementioned email. While the Claimant alleged that Patrick Kamau (OD) took over her role, the said person was already in the employ of the Respondent at the time, as was George Nguyo (O&M), and his job description was completely different from the Claimant’s. They performed distinguishable responsibilities, so that the allegation that Patrick Kamau, whose designation (OD) was in any event different from that of the Claimant (Project Coordinator), took over the Claimant’s duties was completely baseless. The Respondent’s witness also explained that the purport of the aforementioned email was to notify the client of the persons it would contact in the context of winding up of the project. This is the context in which the email, whose authenticity is in any case in doubt, should be read and understood. The Claimant did not also controvert the Respondent’s witness’s testimony that the Respondent did not receive any new work from Liquid Telecom and Simbanet in the period between 1st August 2019 and 6th November 2020. Notably, the Claimant conceded that she neither reported to work nor actually worked for the Respondent from 27th July 2019 to 12th February 2021. She however received her full salary and related benefits for this period. The Claimant’s argument is that the Respondent chose not to assign her any duties, and that the members of her team would occasionally call her regarding the work. She did not adduce any proof of any such communication from her colleagues. One wonders, would it be logical for an employer to pay an employee their full salary and benefits for 20 months and fail to assign them duties deliberately? Would a reasonable employer allow an employee to receive remuneration for free when there is work to be done? Would an employer who is already experiencing a downturn in business continue paying an employee their full salary and let the said employee continue staying home when there is work to be done? No, they would not. The Respondent could not reasonably pay the Claimant her full salary and choose not to assign her duties. This would be most improbable. The reason the Claimant did not work, but continued receiving her full salary, is that while there was no work to be done, there were Court Orders halting the redundancy process which effectively meant that the Claimant remained in the Respondent’s employ. We submit that the fact the Respondent was no longer receiving any orders from Simbanet, and that the Liquid Telecom project was being wound up in July 2019, were genuine reasons to declare the Claimant’s position redundant. The Claimant did not demonstrate that she had any skills that could be deployed in some other position within the Respondent’s workforce. In sum, the termination of the Claimant’s employment on account of redundancy was substantively justified. 30.Procedural Fairness. The Claimant impugns the procedure followed by the Respondent in terminating her employment on one count – that despite the Respondent notifying the Labour Office of the intended redundancy, no such notice was shared with her. She premises this position on the argument that the Respondent’s Notice to the County Labour Office was the start of a new redundancy process. This could not be further from the truth. The Court Orders issued in ELRC 502 of 2019 restrained the Respondent from terminating the services of the Claimant and other employees: “THAT pending hearing inter parties the Respondent is restrained from terminating the services of the named employees or any other employee by way of redundancy in violation of Section 40 of the [Employment Act](/akn/ke/act/2007/11), 2007.” (see pages 2 -3 of the Respondent’s Bundle of Documents) These Orders effectively stopped the Respondent in its tracks and prohibited it from completing the impugned redundancy process. This meant that the Claimant remained in the Respondent’s employ during the pendency of these orders which lapsed on 6th November 2020 when the Court ruled, inter alia, that: “I have further taken into account that this is a case of redundancy and that an employer has a right to carry out redundancy provided it complies with the law in the process and has valid reason for doing so. The issues or procedure and valid reasons are matters that are subject to evidence at the hearing. Taking this into consideration, the balance of convenience would tilt in favour of allowing the Respondent to carry out the redundancy and dealing with the propriety of the redundancy during the hearing of the main suit.” (found at page 17 of the Claimant’s Bundle of Documents) Vide its ruling delivered on 6th November 2020, the Court effectively allowed the Respondent to complete the redundancy process from the point it had reached when the aforesaid injunctive orders were issued. The learned judge did not order the Respondent to commence the process afresh. If that had been the intention of the Court, nothing would have been easier than for the Court to say so. The Claimant cannot therefore argue that the Notice sent to the County Labour Office dated 11th November 2020 heralded a new process altogether. It did not, and that is exactly why the first line in the letter makes reference to a previous letter sent to the Labour Office in July 2019, which is the letter that commenced the redundancy process: “Reference is made to the letter dated 2nd July 2019 – REFCMS 01/02719 in regards to the above subject matter” In any case, the initial termination letter dated 26th July 2019 (see page 8 of the Claimant’s Bundle of Documents), which letter was still valid at all material tines, expressly referred to a recent notice to all staff: “Following the recent notice to all staff, we write to inform you that Camusat Kenya Limited is in the process of restructuring its operations in Kenya through among other methods…” The initial termination letter dated 26th July 2019 makes it abundantly clear that all staff, including the Claimant, had been notified of the intended redundancy. The Claimant cannot therefore claim that she was notified of the intended redundancy. Therefore, having been notified of the intended redundancy as aforesaid; having received the initial termination letter on or about 26th July 2019 (see page 8 of the Claimant’s Bundle of Documents); and having received her salary in full for 20 months without doing any work for the Respondent, the Claimant was fully aware that the circumstances that had necessitated the decision to declare her position redundant back in July 2019 had not changed in February 2021. When the Claimant did not receive communication from the Respondent to go back to work, she should have realized that circumstances had not changed, and that upon the lapse of the aforesaid injunctive orders the Respondent would actualize the termination letter she had initially received on or about 26th July 2019. There was no legitimate expectation that the Respondent would commence a fresh redundancy process upon the lapse of the aforesaid injunctive orders. While Section 40(1)(a) of the [Employment Act](/akn/ke/act/2007/11) requires a notice of intended redundancy to be issued at least one month prior to the date of the intended date of termination on account of redundancy, the Claimant in this case had notice, constructively, of at least 20 months. We submit that this is sufficient for purposes of Section 40(1)(a). Ergo, the termination of the Claimant’s employment by reason of redundancy was procedurally fair. Decision 31.It was not in dispute that the termination of the employment of the claimant was due to redundancy. Redundancy is defined under section 2 of the [Employment Act](/akn/ke/act/2007/11) as –‘"redundancy" means 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 as abolition of office, job or occupation and loss of employment;’ 32.The procedure for redundancy is according to section 40 of the [Employment Act](/akn/ke/act/2007/11), to wit- ‘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.The claimant contested the validity of the reason for the redundancy. At the outset, the court states that redundancy is a prerogative of an employer for business reasons (Murgor Ja in the Kenya Airways redundancy case ). On analysis of the evidence before the court at cross-examination, the claimant admitted she was employed as a project coordinator of the Wananchi and Liquid Telcom project. The claimant had no evidence that she was acting as a construction project manager before maternity. She said her position was first declared redundant in 2019, vide a letter addressed to her. The letter referred to notice to all staff which she told the court they were not informed. The claimant said she was shown the letter by human resources officer and was not given a copy till after the union had filed a case in court. She was not unionisable. She was aware that the court issued an order restraining the redundancy, and she returned to work. The claimant told the court she was at home from 26th July 2019 to 12th February 2021, which was more than a year. She had no evidence that she was working but received full salary. She had no evidence that she was consulted while at home. She had no evidence to back allegations that some employees were reabsorbed. She confirmed she was called for a meeting on 5th Feb 2021, but stated it was about a discussion on a possible job in Uganda. She confirmed attendance but had no proof of the offer for Uganda. 34.As regards Liquid Telcom, the claimant told the court with Kisii road construction she had submitted upgrade project to improve communication, she had no evidence before court but said she was aware it was implemented. The claimant had no evidence of when she submitted the upgrade; she had no proof that the project was ongoing in 2021-2022. She had no evidence that the Simbanet was also ongoing. The claimant admitted that Omoi who she alleged to have substituted her was the operations director and not the position she held of project coordinator 35.The claimant admitted it was after the meeting of 5th February that she received the termination letter 7 days later. The claimant told the court the letter to the labor officer was given to her together with the redundancy letter. The claimant confirmed in the letter to the labour officer that the position of project coordinator was declared redundant (page 20 of the claim). The claimant confirmed before the termination letter was issued to her that she had not been informed of the redundancy. In re-examination, the claimant stated that, from the email of 27th July 2019, she understood that Liquid maintenance was ongoing. The letter did not mention the project. 36.Conversely, the respondent witness had no evidence that Liquid was closing down in 2019. The witness had no document on the criteria used to select the claimant for redundancy. On the Simba Business and email of 26th August 2020, the business is not doing well. Simba Net did not communicate the termination of the project. The witness was not aware whether the letter on redundancy was shared with the claimant. On evaluation of the proceedings, I find before me was evidence of the basis of redundancy being the email which communicated that Simbanet was not doing well, the fact that the claimant was paid salary for 1 year without working could only mean our services were no longer necessary, or there was no work. The employer cannot be expected to continue payment of salary when there is no work. That scenario calls for redundancy as the employee was willing to work. 37.Redundancy being a prerogative of the employer, the court cannot interfere unless it is demonstrated that it had no basis and was not related to the business. The claimant’s position of project coordinator was declared redundant in the letter to Labour officers. There was also redundancy declared for other positions, as evidenced by the ruling in Nairobi ELRC Cause No. 502 of 2019. I am satisfied the employer proved there was a basis for the redundancy based on business interest. 38.On the procedure, the court faults the procedure on the basis of notice to the claimant as required under section 40. The minutes of the meeting held on 5th Feb were not produced as evidence that the claimant’s representations were considered regarding the redundancy, and no evidence was produced that the notice was served to her, as was done to the Labour officer. The Court of Appeal in German School Society & another v Ohany & another (Civil Appeal 325 & 342 of 2018 (Consolidated)) [2023] KECA 894 (KLR) held that consultation is an essential part of the redundancy process, stating as follows; [57] “In essence, consultation is an essential part of the redundancy process and ensures that there is substantive fairness. The employer should ensure that it carries out the process as fair as possible and that all mitigating factors are taken into consideration.” The Court of Appeal further found the termination was unfair for want of consultations as follows; [63]….It is apparent from the records of these appeals that there was no evidence on record or presented to the trial judge regarding any consultations undertaken in the manner stated hereinabove. We therefore find no fault in the finding by the trial judge that the termination was unfair for want of the consultations envisaged under section 40 of the [Employment Act](/akn/ke/act/2007/11).” To that extend the process is faulted and Notice pay of 1 months awarded Kshs. 159,813.60 Whether the claimant was discriminated against. The claimants’ submissions 39.The [Employment Act](/akn/ke/act/2007/11) provides for various rights in relation to fair labour practices. Section 5 (3) (b) of the Act specifically provides as follows with regard to discrimination in respect of termination of employment; “(3) No employer shall discriminate directly or indirectly, against an employee or prospective employee or harass an employee or prospective employee― (b) in respect of recruitment, training, promotion, terms and conditions of employment, termination of employment or other matters arising out of the employment”. The Claimant demonstrated that she was subjected to acts of both direct and indirect discrimination by the Respondent, contrary to the provisions of [the Constitution](/akn/ke/act/2010/constitution) and the [Employment Act](/akn/ke/act/2007/11), as evidenced by the following incidents:- a. In computing the Claimant’s severance pay, the Respondent applied a rate of 15 days’ pay for every completed year of service, whereas other employees declared redundant during the same period were paid at the higher rate of 20 days per year. This disparity, evidenced by the letter at page 23 of the Claimant’s documents, amounted to discriminatory treatment in the computation of her terminal dues. b. The Claimant was singled out as the only employee declared redundant in the Simba Net project, while her colleagues were reassigned to other projects despite her transferable skills and experience. c. The Claimant was deliberately excluded from training sessions for project managers and members of the design team, even though such training was integral to the performance of her duties as a Project Coordinator. d. The Respondent failed to consider the Claimant for an end-year bonus in 2016 despite her having met her performance targets, thereby treating her less favourably than her peers. e. Upon resumption from maternity leave, the Respondent frustrated the Claimant by declining to reinstate her to her acting role as Construction Manager and instead reassigning her to the position of Project Coordinator. This amounted to a demotion and constituted direct discrimination on the ground of maternity, contrary to her rights under the law. It is our submission our submission that the termination of the Claimant’s employment was not only unfair but also tainted with multiple incidents of discrimination, through which she was deliberately singled out and subjected to treatment calculated to humiliate her, in violation of her constitutional rights. The Claimant therefore submits that her termination, disguised as redundancy, amounted to discrimination and a violation of her right to fair labour practices as guaranteed under Articles 27 and 41 of [the Constitution](/akn/ke/act/2010/constitution), read together with Section 5 of the [Employment Act](/akn/ke/act/2007/11). In the circumstances, we respectfully urge this Honourable Court to award the Claimant damages in the sum of KES 1,500,000 for discrimination and victimization, and to direct a recomputation of her severance pay at the rate of twenty (20) days for each completed year of service. Respondent’s submissions 40.Alleged Discrimination -The Claimant alleges that the Respondent violated her rights under Article 27 of [the Constitution](/akn/ke/act/2010/constitution). While she has particularized three alleged incidents in this regard, in addition to the allegation of discrimination in relation to computation of her severance pay, she has not proven either of them. The Claimant did not adduce any evidence to demonstrate that: i. the Respondent conducted a training of project managers and some members of the design team; ii. the Respondent had a bonus policy, and that she met her target for 2016; and iii. she had been occupying the role of acting Construction Manager before she took her maternity leave. 23.While the Claimant produced and relied on a sample redundancy letter purportedly issued by the Respondent in May 2021 in support of her claim that she was discriminated against in relation to computation of her severance pay, we urge the Court to consider that the letter: i. does not have an addressee; ii. does not have an author; iii. appears incomplete, as is the name purported to be ‘Camusat’ at the bottom right hand side; and iv. is not signed. The Court cannot and should not rely on this letter. It is not authenticated. Consequently, it lacks probative value. Concurrence on this is drawn from the persuasive decision of Tumaz & Tumaz Enterprises Limited v Oliver Chapa Chonga & another [2022] KEHC 13763 (KLR) where the learned judge stated: “An unsigned document cannot possibly be of any probative value, for what authenticates a document and gives it legitimacy is the signature. Execution of the document means that the person uttering it gives it ownership and reliability.” The Claimant cannot prove that this letter was actually issued to another employee who therefore received their severance pay at the rate of 20 days for each completed year of service. Even if, for argument’s sake, the letter is authentic, the Respondent’s witness satisfactorily explained that unionized employees received a higher severance pay at the rate of 20 days for each completed year of service on account of their Collective Bargaining Agreement. This explanation was not controverted, and it is supported by the aforesaid Court Orders and ruling which were issued in ELRC 502 of 2019, a case filed by the Communication Workers Union. This is the union referred to by the Respondent’s witness in his explanation. The differentiation in severance pay is therefore justifiable in this case and, in any case, the Claimant did not receive a cent lower than is prescribed by Section 40(1)(g) of the [Employment Act](/akn/ke/act/2007/11). She received exactly what that provision commands. Decision 41.The claimant summarized the basis of the her claim for discrimination as follows-a.In computing the Claimant’s severance pay, the Respondent applied a rate of 15 days’ pay for every completed year of service, whereas other employees declared redundant during the same period were paid at the higher rate of 20 days per year. This disparity, evidenced by the letter at page 23 of the Claimant’s documents, amounted to discriminatory treatment in the computation of her terminal dues.b.The Claimant was singled out as the only employee declared redundant in the Simba Net project, while her colleagues were reassigned to other projects despite her transferable skills and experience.c.The Claimant was deliberately excluded from training sessions for project managers and members of the design team, even though such training was integral to the performance of her duties as a Project Coordinator.d.The Respondent failed to consider the Claimant for an end-year bonus in 2016 despite her having met her performance targets, thereby treating her less favourably than her peers.e.Upon resumption from maternity leave, the Respondent frustrated the Claimant by declining to reinstate her to her acting role as Construction Manager and instead reassigning her to the position of Project Coordinator. This amounted to a demotion and constituted direct discrimination on the ground of maternity, contrary to her rights under the law. 42.The claimant's substantive position was of a project coordinator, hence had no right to an acting position. Acting position is usually a stopgap measure as the employer seeks a fit person to occupy the position. The issue of the bonus was not proved. The court was satisfied with the reason for the redundancy of the position held by the claimant. The only apparent ground of discrimination was the issue of difference in the rate of payment of severance, which the employer justified based on the CBA and the [Employment Act](/akn/ke/act/2007/11). Section 40 (1)(d) of the [employment Act](/akn/ke/act/2007/11) reads- ‘(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;’’ The provision then defeats the defence by the respondent that the payment to the claimant was lawful and the difference was based on CBA. The ground of discrimination then succeeds. Whether the claimant was entitled to relief sought 43.The claimant sought for the following reliefs-a.A declaration that the Claimant's termination was unfair, unlawful and unprocedural;b.A declaration that the Claimant’s termination was discriminatory and violated her Constitutional rights under Articles 27, 41 and 47 of [the Constitution](/akn/ke/act/2010/constitution) of Kenya, 2010.c.Compensation for unlawful, unfair and unprocedural termination of employment assessed at twelve (12) months' salary amounting to Kes.1,917,763.20d.An order for re-computation and payment of the rightful severance pay to the Claimant at the rate of 20 days for each year worked.e.General damages for discrimination and victimisation in the sum of Kes.1,500,000.00f.Costs of this suit.g.Interest on c) and d) at court rates from the date of judgment until payment in full.h.Any other remedy or relief that this Honourable Court may deem just and expedient to grant. 44.The court found the reason for the redundancy was valid but unprocedural. The court awarded the equivalent of 1 month salary Kshs. 159,813 for procedural unfairness. 45.The court found evidence of discrimination on account of different payment of severance pay compared to the unionised employees. The claimant sought compensation for discrimination as well as an order for re-computation and payment of the rightful severance pay to the Claimant at the rate of 20 days for each year worked. Having asked for compensation, it would amount to unfair enrichment to award both. The claimant is awarded Kshs. 500,000 for the discrimination. 46.In the upshot, the claim is allowed as follows-a.The reason for redundancy is held valid. The court held the process was procedurally flawed thus unfair.b.Judgment is awarded for the claimant against the respondent as follows-a.Notice pay for procedural unfairness- Kshs, 159,813.b.Compensation for discrimination Kshs 500,000.c.Costs and interest at court rate from date of judgment 47.It is so ordered **DATED, SIGNED, AND DELIVERED IN OPEN COURT AT NAIROBI THIS 29 TH DAY OF JANUARY, 2026.****J.W. KELI,****JUDGE.** In The Presence Of:Court Assistant: OtienoClaimant: Ms. WeruRespondent: Mr. Wachira