Njoroge v Rugu (Sued as the Legal Administrator of the Estate of Paul Rogo Itotia (Deceased)) & 3 others (Employment and Labour Relations Cause E045 of 2021) [2025] KEMC 253 (KLR) (12 June 2025) (Judgment)

Njoroge v Rugu (Sued as the Legal Administrator of the Estate of Paul Rogo Itotia (Deceased)) & 3 others (Employment and Labour Relations Cause E045 of 2021) [2025] KEMC 253 (KLR) (12 June 2025) (Judgment) Neutral citation: [2025] KEMC 253 (KLR) Republic of Kenya In the Nakuru Law Courts Employment and Labour Relations Cause E045 of 2021 PA Ndege, SPM June 12, 2025 Between Faith Wathoni Njoroge Claimant and Peter Itotia Rugu (Sued as the Legal Administrator of the Estate of Paul Rogo Itotia (Deceased)) 1st Respondent Lilian Irigo Rugu (Sued as the Legal Administrator of the Estate of Paul Rogo Itotia (Deceased)) 2nd Respondent Newton Rugu 3rd Respondent Isaac Rugu 4th Respondent Judgment 1.The claimant commenced the cause by way of Memorandum of Claim dated 18th January, 2021 and filed in Court on the same date through S. K. MBURU & CO. ADVOCATES. As is the procedure, the Memorandum of Claim is accompanied with a verifying affidavit sworn by the claimant, a witness statement by the claimant, a list of documents and a bundle of copies of the listed documents. 2.It is the claimant’s case that she was employed by Peter Itotia Mwangi t/a WestPoint Commercial Stores on 01/01/2006, as a tailor earning a salary of Kshs. 9,000/- until the demise of the said Peter Itotia Mwangi on 20/01/2018 (hereinafter referred to as the first period). That upon the demise of Peter Mwangi who was the original owner of business on the 20th,January,2018, the Claimant and all other employees were locked out of the premises by all the Respondents herein on or around the 1st February, 2018 on allegation that there had been a dispute regarding the running of a business by the Respondents herein and other beneficiaries/Respondents of the deceased, and as a result of the lock out, the claimant did not attend her work place and neither was she paid any salaries signaling a significant break in her employment. 3.The Claimant stated that the lock out persisted up to the 10th August, 2018, where they were re-engaged by the 3rd and 4th Respondents back to their employment where the Claimant worked for the said 4th Respondent until 20th March 2020, when operations were closed by the 3rd and 4th Respondents due to the adverse effects of the COVID-19 pandemic. However, the Respondents (3rd & 4th) later opened the business and hired new staff. 4.The Claimant further stated that whilst working for the deceased, and thereafter the Respondents, she would work for nine hours a day and six hours a week without the benefit of overtime payment. Similarly, she was required to work on public holidays during the pendency of her employment. The claimant also stated that the respondent never paid her any house allowance and never allowed her to go for annual leave for the entire period of employment. 5.The claimant is asking for the following reliefs: -a.A declaration be made to the effect that the claimant's termination in the first and second period was unfair as the same was not within the ambit of the [Employment Act](/akn/ke/act/2007/11),2007 and other employment laws.b.Compensation for unfair terminationi.1st Period: Kshs.278,191.82ii.2nd Period: Kshs.292,217.00c.Notice payi.1st Period: Kshs.23,191.82ii.2nd Period: Kshs.24,351.42d.Underpayments House allowancei.1st Period: Kshs.321,740.28ii.2nd Period: Kshs.31,141.72e.Annual leave payi.1st Period: Kshs.206,600.40ii.2nd Period: Kshs.31,141.70f.Normal overtimei.1st Period: Kshs.404,609.78ii.2nd Period: Kshs.89,912.92g.Holiday Payi.1st Period: Kshs.139,429.96ii.2nd Period: Kshs.29,288.35h.Severance Payi.1st Period: Kshs.147,178.86ii.2nd Period: Kshs.28,097.99i.Service Payi.1st Period: Kshs.147,178.86ii.2nd Period: Kshs.28,097.99j.Certificate of Service 6.The Claimant filed documents in support of her claim which are annexed to the Memorandum of Claim which include; -i.A copy of the Claimant’s National Identity Cardii.Copy of Demand Letteriii.A Copy of a Grant Letter of Administration 7.The Respondents filed a Response to the Memorandum of Claim dated 10/9/21 as well as their list of witnesses dated 03/10/22 and prayed that the Claimant’s cause be dismissed with costs for the reason that the Claimant’s claim is an afterthought and brought to this Honorable Court in bad faith. 8.The case came up for hearing on the 29th of March,2022 when the Claimant (CW1) gave oral evidence in chief, was cross-examined and re-examined and the Claimant's case closed. The Respondents' case came up for hearing on the 11th February,2025 when the Respondents called one witness (RW1) being the 3rdRespondent, who testified and was cross-examined and thereafter, the Respondents' case was closed. RW1 basically denied the Claimant’s allegations. Submissions 9.The Claimant filed her written submissions and in support of the averments in Memorandum of Claim and Witness Statement, the Claimant submitted briefly that her termination on account of redundancy was unfair within the meaning of Section 45 of the [Employment Act](/akn/ke/act/2007/11), 2007 and violated the conditions to be met before a declaration of a redundancy set out in Section 40 which must be strictly followed to ascertain whether there was a procedurally and fair termination on account of redundancy. 10.The Respondents did not file their submission in Court. However, the 3rd respondent who in his response to the memorandum of claim deny the allegations of the Claimant and put her into strict proof on the same. Analysis And Determination 11.Upon careful consideration of the pleadings, the evidence adduced, witnesses’ testimonies and the submissions, the following issues crystalize for determination;i.Whether the Claimant’s termination on account of redundancy amounts to an unfair terminationii.Whether the Claimant is entitled to the reliefs sought. I. Keeping of Employment Records 12.It’s evident that Peter Itotia (deceased), in his life time, did not have much regard to the keeping of employment records as confirmed by (RW1), which in essence means that he was not in compliance with the requirement of Section 9 & 10 of the [Employment Act](/akn/ke/act/2007/11), 2007 with regard to reduction of verbal contract of employment to a written contract of employment. 13.Evidence of (RW1) was that there were no proper records to ascertain what the employee, the Claimant, or one of them was earning but that he was being paid a monthly wage—although he did not know how much. 14.RW1 however confirmed that the Claimant was employed as a Tailor from the 1st day of January ,2006 and such position changed to a new employment for an in determine at a period in the witness statement of (RW). This position was later changed in oral testimony during cross-examination where he stated that all employees were earning monthly wages, although there were no records to show the amount earned. 15.The Claimant in her pleadings and oral evidence stated that she was employed on the 1st day of January, 2006, which was admitted by the Respondent in pleadings only that she was stated at Ksh.3,000/= and earned a last salary of Ksh.9,000/=, wherefrom the salary progressed as pleaded in the Memorandum of Claim. 16.The [Employment Act](/akn/ke/act/2007/11), 2007 at Section 9 and 10 provides that an employer shall reduce a contract of service into writing within three months of employment and that the said contract shall detail all particulars of employment including the job description at the employee’s commencement date of employment, form and duration of the employee’s engagement, and working hours, as well as the place of work and rest hours, among other entitlements. 17.Section 74(c) of the [Employment Act](/akn/ke/act/2007/11), 2007 mandates all employers to keep written records of employment with regard to all employees who are employed by that particular employer and covering all aspects of employment. Such records would include the wage pattern records which would thus reflect what the Claimant was earning.There being no records of employment tendered herein, the claimant’s oral claims remains uncontroverted. II. Whether the Claimant’s redundancy amounts to an unfair termination 18.Redundancy is defined under Section 2 the [Employment Act](/akn/ke/act/2007/11), 2007 to 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; 19.While the law recognizes redundancy as a legitimate mode of termination of employment, it sets stringent conditions to be satisfied by the employer declaring redundancy. This conditions are codified in Section 40 0f the [Employment Act](/akn/ke/act/2007/11) as follows:(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.(2)Subsection (1) shall not apply where an employee's services are terminated on account of insolvency as defined in Part VIII in which case that Part shall be applicable.(3)The Cabinet Secretary may make rules requiring an employer employing a certain minimum number of employees or any group of employers to insure their employees against the risk of redundancy through an unemployment insurance scheme operated either under an established national insurance scheme established under written law or by any firm underwriting insurance business to be approved by the Cabinet Secretary. 20.On this issue, parties have adopted opposing positions with the Claimant urging that the termination of employment was unfair. The Respondents on the other hand deny the Claimant’s claim and call her to strict proof. 21.As regards termination of employment, both the [Employment Act](/akn/ke/act/2007/11),2007 and the case laws are consistent that for termination of employment to pass the fairness test, it must be demonstrated that the employer had a valid and a fair reason to terminate the employee’s employment and he did so in accordance with fair procedure. 22.The foregoing is fortified by legions of decisions such as Walter Ogal Anuro V Teachers Service Commission [2013] eKLR where Ndolo J. underscored the need to establish a substantive justification for the termination of employment and procedurally fairness, a position further emphasized by the Court of Appeal in Naima Khamis V Oxford University Press EA Limited [2017] eKLR. Requirement of a Notice 23.The employer has to give written notification to the employees targeted for redundancy together with the labour office at least one month before the commencement of the intended redundancy. In Kenya Union of Domestic, Hotel, Education Institution, Hospital and Allied Workers V Nairobi Hospital [2022] KEELRC 1014 (KLR), the Court found that the respondent has failed to comply with the requirements of rendering redundancy as stipulated in Section 40 of the [Employment Act](/akn/ke/act/2007/11), 2007, by failing to give notices to claimants. 24.In this case, no evidence was submitted in Court showing either the claimant or the labour office were served with a notice before the commencement of redundancy. Reasons for termination 25.As correctly submitted by the learned counsel for the claimants, there were valid reasons for declaring the claimant redundant both in the fist instance, around 01/02/2018 when the then employer passed on; and on 20/03/2020 at the onset of the Covid – 19 pandemic in Kenya. There were therefore substantive reasons for declaration of redundancies on both occasion Consultation 26.In Kenya Airways V Aviation & Allied Workers Union Kenya & 3 Others [2014] eKLR, the Court observed that consultation is aimed to at giving parties; an opportunity to consider measures to be taken to avert or to minimize the termination and secondly, measures to mitigate the adverse effects of termination of the workers concerned such as alternative employment. 27.Similarly, in The German School Society V Helga Ohany (Civil Appeal No.325 of 2018 consolidated with No. 342 of 2018) the Court of Appeal held that the requirement for consultation is implied in Section 40 of the [Employment Act](/akn/ke/act/2007/11), 2007 and stated that:“In essence, consultation is an essential part of the redundancy process and ensure that there is substantive fairness. The employer should ensure that it carries out the process as fair as possible as possible and all mitigating factors are taken into consideration." 28.In the instant case, no any consultation was carried out between the claimant and the respondent on both the first and second period of employment in declaring the said employment redundant. During cross-examination the claimants averred that her efforts to get in touch with the 3rd and 4th Respondents for purpose of establishing the status of employment were futile. III. Whether the Claimant is entitled to the reliefs sought. 29.Having come to the above findings, the court proceeds as follows; Unfair termination 30.Having found that the Respondents has failed to demonstrate that it terminated the Claimant’s employment in accordance with a fair procedure, I do hereby award her maximum compensation at a total amount of Kshs.278,191.82 for the first period and Kshs. 292,217.07 for the second period. Notice pay 31.I found that the Claimant is entitled to a one month’ notice. I do therefore award her Kshs. 23,191.82 for the 1st period and Kshs. 24, 351.42 for the 2nd period in line with the relevant minimum wage Order as pleaded in the Memorandum of Claim. Annual leave pay 32.The claim lacks supportive evidence and legal justification as there is no evidence that the Claimant herself applied for leave and was denied. The claim for annual leave is therefore dismissed. Underpayment & House Allowance 33.I find no evidence to controvert the Claimant’s claim for under payment, house allowance, and public holiday pay as no records were produced to controvert the same. I do hereby award her the amount claimed of Kshs.1,221,740.28 for the 1st period and Kshs. 317, 404.65 for the 2nd period. Normal Overtime 33.I similarly find no records produced to controvert the Claimant’s claim of having worked overtime. I do therefore award her Kshs. 404,009.78 for the 1st period and Kshs. 89,912.92 for the second period Public Holidays 33.I similarly award the Claimant Kshs. 139,429.96 for the 1st period and Kshs. 29,208.35 for the 2nd period as there was no evidence that during public holidays, the claimant was allowed time off or was compensated. Severance pay 36.The claimant prays for as severance pay. Section 40(1)(g) of the [Employment Act](/akn/ke/act/2007/11) provide for the payment of 15 days’ pay for each completed year of service. I award the Claimant Kshs.147,178.86 for the 1st period and Kshs. 28,097.79 for the 2nd period. Conclusion 36.In conclusion an order of declaration be and is hereby made declaring that the decision of the Respondent to terminate the Claimant’s employment on account of redundancy was unlawful and unfair and the judgment is entered in favour of the claimant against the respondents as follows; -i.Unfair termination compensation.…………Kshs 570,217.07ii.Notice pay…………………………………………Kshs.47,351.42iii.Underpayment and house allowance……Kshs.1,539,144.93iv.Normal overtime………………………………. Kshs. 493,922.7v.Holiday pay……………………………………. Kshs. 168,638.31vi.Severance pay…………………….…………. Kshs. 175,276.65Total award……………………...…………Kshs. 2,994,551.08vii.Certificate of Serviceviii.The respondent shall pay the Claimant’s costs of this suit. **DATED, SIGNED AND DELIVERED AT NAKURU ON THIS 12th DAY OF June 2025.****ALOYCE-PETER-NDEGE.****SENIOR PRINCIPAL MAGISTRATE.** In the presence of;Claimant’s Counsel: n/aClaimant: n/a1st Respondent: n/a2nd Respondent: n/a3rd Respondent: n/a4th Respondent: n/a