Legal Analysis on Procedural Fairness in Redundancy: The Case of Mwikali v Flame Tree Africa Limited [2025] KEELRC 1809 (KLR)

Full Case: Mwikali v Flame Tree Africa Limited [2025] KEELRC 1809 (KLR)

I. Introduction

This memorandum analyzes the decision in Mwikali v Flame Tree Africa Limited, where the Employment and Labour Relations Court found that the Respondent’s redundancy process was procedurally flawed despite issuing a formal one-month notice. The ruling emphasizes the importance of genuine notice, consultation, and fair implementation of redundancy under Kenyan employment law.

II. Issues

1. Whether a redundancy notice that purports to give one month’s notice is valid where the employee is effectively dismissed on the same day.
2. Whether instructing an employee to hand over company property on the same day as a redundancy notice nullifies the notice.
3. Whether the redundancy process adhered to the procedural requirements under the Employment Act.

III. Relevant Law

• Employment Act, 2007 (Kenya):
• Section 40(1): Sets out mandatory procedural requirements for redundancy, including:
• Issuance of at least one-month prior notice to the employee and the labour officer;
• Consultations with the employee or their representative;
• Criteria for selection (e.g., seniority, skills, etc.);
• Payment of redundancy dues (severance pay, accrued leave, etc.).
• Article 41 of the Constitution of Kenya, 2010: Guarantees the right to fair labour practices.
• Case Law Principles: Courts have emphasized that redundancy must be both substantively justified and procedurally fair.

IV. Case Summary: Mwikali v Flame Tree Africa Ltd [2025] KEELRC 1809 (KLR)

Facts:

• The Claimant received a redundancy notice letter dated 18 March 2021, indicating that she would be declared redundant after one month.
• However, in the same letter, the Claimant was instructed to surrender all company property by close of business on the same day.
• The Claimant challenged the validity of the redundancy process, arguing that it was procedurally unfair and not genuine.

Court’s Findings:

• The Court held that despite the formal indication of a one-month notice, the instruction to hand over company property on the same day indicated a constructive termination.
• The employer’s conduct showed it had no intention of retaining the Claimant during the purported notice period.
• The Court found that:
• No genuine notice was given;
• There was no opportunity for consultation, as required under Section 40 of the Act;
• The redundancy process was procedurally flawed and unfair.

V. Analysis

1. Form vs Substance in Redundancy Notice

This case confirms that redundancy notice must be real and effective — not just procedural formality. Simply stating “one month” on paper while forcing an immediate handover is evidence of bad faith and constructive dismissal.

2. Immediate Handovers Signal Immediate Termination

By instructing the Claimant to surrender all company property on the same day, the Respondent demonstrated that the employment relationship was immediately severed, contrary to the purported notice. This undermines the employee’s right to notice and time to adjust or consult.

3. Violation of Section 40 of the Employment Act

The Respondent failed to:

• Conduct genuine consultations;
• Allow the notice period to be effectively served;
• Comply with the spirit and letter of redundancy procedures.

4. Breach of Fair Labour Practices

Such conduct also violates Article 41 of the Constitution, which protects employees from arbitrary dismissal and ensures dignity in the termination process.

VI. Conclusion

The decision in Mwikali underscores the principle that redundancy must be both procedurally and substantively fair. Merely issuing a notice letter is not sufficient — the employer's actions must reflect a genuine intention to follow due process, including providing actual time for notice, conducting consultations, and treating the employee fairly during the transition.

VII. Recommendations

For employers to remain compliant:

1. Ensure the redundancy notice is genuine — do not require handovers or exit procedures until the notice period has lapsed or the employee has been properly relieved.
2. Conduct proper consultations with affected employees and the labour officer as per Section 40.
3. Allow employees to serve the full notice period or pay notice in lieu if immediate exit is intended — but be explicit and transparent.
4. Document all steps in the redundancy process to demonstrate good faith and legal compliance.
5. Train HR and management on the legal requirements of redundancy to avoid legal exposure and reputational damage.