On compliance during land regime transitions & Indefeasibility is not absolute: The Case of Frank Logistics Limited v Golden Lion Real Estate Company & 6 Others Civil Appeal E303 of 2024

Full Case: Frank Logistics Limited v Golden Lion Real Estate Company & 6 others (Civil Appeal E303 of 2024) [2025] KECA 1471 (KLR)

 Background & Lower Court History

• Golden Lion Real Estate (First Respondent) bought a property known as LR No. 1/835 (Original Number 1/225/5) — which includes “Blacky’z Lounge” located along Argwings Kodhek Road, Kilimani, Nairobi — from Propco Limited in 2014.
• Golden Lion alleged that although it was the registered proprietor, Frank Logistics (Appellant) interfered with it: by claiming ownership, effecting a transfer, obtaining a certificate of title L.R. No. 1/381 [I.R. No. 200711] in its name, charging the property in favour of another respondent, among other dealings, despite prior court orders restraining such dealings.
• Golden Lion sued (Environment & Land Court case 792 of 2015) seeking declarations that the transfer and charge were illegal/null, permanent and mandatory injunctions, and, in the alternative, possession of the property.
• Frank Logistics defended, contending that:
• It was properly registered as proprietor;
• It had done due diligence;
• There were discrepancies in the title submissions by Golden Lion;
• Some of Golden Lion’s claims lack proof.
• Environment & Land Court (Mogeni, J.) in a judgment delivered on 11 April 2024 found in favour of Golden Lion. The court held that the appellant’s title had been procured in an unprocedural manner, that Golden Lion had validly registered title, and that transfer to appellant was unlawful. The title held by the appellant was cancelled, mandatory injunction for cancellation ordered, and Golden Lion was declared the rightful owner.

Issues on Appeal

On appeal, the Appellant raised many grounds (about 35) including, but not limited to:

1. Whether the allegations of fraud and misrepresentation (on which Golden Lion based its case to challenge the appellant’s title) were properly proved.
2. Whether the appellant had indefeasible title under Section 26(1)(a) of the Land Registration Act.
3. Whether Golden Lion had shown good root of title and was a bona fide purchaser.
4. Whether Golden Lion had done due diligence before acquisition.
5. Whether the court was correct in finding the charge in favour of the 6th respondent invalid.
6. Allegations of procedural unfairness: e.g. late service of submissions, lack of hearing on some submissions. 
7. Whether the ELC erred in finding that Frank Logistics’ title was acquired illegally and unprocedurally.
8. Whether the ELC erred in cancelling the appellant’s certificate of title.
9. Whether the appellant had indefeasible title under the Land Registration Act, 2012.
10. Whether the respondents had proved fraud, illegality, or misrepresentation. 

Decision of the Court of Appeal

• The Court of Appeal dismissed the appeal.
• The Court upheld the findings of the Environment and Land Court: that Golden Lion was the valid proprietor; that the title in favour of Frank Logistics was irregular, unprocedural, illegal and thus cancellable under Section 26(1)(b) of the Land Registration Act, 2012.
• The Court found that Golden Lion had proved its title, root of title, and that the conveyance to it and registration were valid.
• The Court affirmed that even in the absence of proven fraud, titles may be challenged on the basis of “illegal, unprocedural or corrupt scheme” under section 26(1)(b). The appellant’s title was lost for being unprocedural, among other defects.
• The cross-appeals by the 6th and 7th respondents were also dismissed.
• Orders made: permanent injunctions, declarations of nullity for the transfer and charge to Frank Logistics and the 6th respondent; mandatory cancellation of the title in appellant’s name; eviction/delivery of vacant possession to Golden Lion; costs awarded to Golden Lion.

Outcome / Relief

• The Court of Appeal dismissed Frank Logistics’ appeal, upholding the lower court’s judgment in full.
• Golden Lion Real Estate Company declared lawful registered owner of LR No. 1/835 (Original 1/225/5).
• All dealings, transfer, charge in favor of Frank Logistics or the 6th respondent declared illegal and void.
• Mandatory injunction ordering cancellation of the title in the appellant’s name.
• Appellant ordered to vacate and deliver vacant possession; eviction if necessary.
• Golden Lion awarded costs.

  

Legal Principles Applied

a. Indefeasibility of Title

Under Section 26(1) of the LRA, 2012, a certificate of title is prima facie evidence of ownership. However, it can be challenged if it is:

• Obtained by fraud or misrepresentation;
• Acquired through an illegal, unprocedural, or corrupt scheme.

b. Root of Title

The Court stressed the importance of establishing a clear and lawful chain of title. Golden Lion successfully demonstrated a legitimate acquisition, whereas Frank Logistics failed to do so.

c. Transition Between Land Regimes

The case involved the transition from the Government Lands Act (GLA) and Registration of Titles Act (RTA) to the Land Registration Act. The Appellant failed to prove that it lawfully converted or registered title under the applicable regime.

d. Due Diligence in Land Transactions

The judgment underscored the duty of parties to conduct thorough investigations into the history, ownership, and court status of property before registration or charging.

e. Proof of Illegality vs. Fraud

The Court clarified that fraud need not be proven if a title was acquired through unlawful or procedurally defective means. In this case, inconsistencies in dates, registry entries, and transfer documentation were sufficient to invalidate the title.

f. Impact of Court Orders Not Registered

Even if a court order restraining dealings with land is not formally registered, parties with knowledge of the same must comply, and failure to do so may render transactions invalid.

Legal Principles

• Indefeasibility of Title (Section 26 of LRA, 2012): Title is not absolute if acquired through fraud, misrepresentation, or an illegal/unprocedural process.
• Root of Title: A party must demonstrate lawful acquisition through proper title history.
• Bona Fide Purchaser Doctrine: Does not apply where procedural irregularities or court orders are ignored.
• Priority of Registration does not validate an illegal process. 

Significance / Implications

• Reinforces that title, even if registered, is not absolutely bullet‐proof: procedural requirements and history (root of title, registration regime transitions, proper compliance with law) are crucial.
• Is a reminder that discrepancies in registry documents, delays in registration, mismatches in IR (instrument numbers), survey plan numbers, etc. can lead to nullification of otherwise impressive documents.
• The case clarifies that for acquisition of title under transitional periods (from old statutes to new ones), the manner of conversion or regime change must be properly shown.
• Emphasises importance for potential purchasers (and lenders) to do full due diligence (including search, checking registry records, reviewing prior court orders or injunctions, etc.).
• Also shows how even if a court order restraining dealings is not registered with the Lands Registrar, it may still impact the legality of subsequent transfers.

 

Validity of Root of Title and Applicability of Bona Fide Purchaser Doctrine — Case Analysis of Dina Management Limited v County Government of Mombasa & 5 Others

1. INTRODUCTION

This commentary provided a legal analysis on the principles established by the Supreme Court of Kenya in Dina Management Limited v County Government of Mombasa & 5 Others and their implications for:

• Assessing the validity of a registered title;
• Determining whether a party can invoke protection as a bona fide purchaser for value;
• Evaluating the effect of Article 40(6) of the Constitution on titles acquired through unlawful means.

2. KEY LEGAL PRINCIPLES FROM THE DINA MANAGEMENT DECISION

(a) Title Must Have a Lawful Root

• The Supreme Court held that the starting point in assessing the validity of title is to examine its root, beginning with the initial allotment.
• The onus is on the title holder to demonstrate that each stage in the chain of ownership is lawful and procedurally compliant.

“To establish whether the appellant is a bona fide purchaser for value... we must first go to the root of the title, right from the first allotment.” (para 94)

(b) Illegally Acquired Titles Are Not Indefeasible

• A title, even if registered, is not immune to challenge where the process of acquisition breached the law.
• Registration does not sanitize an illegal or irregular process.

“If the process that was followed prior to issuance of the title did not comply with the law, then such a title cannot be held as indefeasible.” (para 110)

(c) Constitutional Limitation Under Article 40(6)

• Article 40(1) of the Constitution protects property rights, but Article 40(6) explicitly excludes such protection for property that was unlawfully acquired.
• No individual can claim constitutional protection over such land.

“Article 40(6) limits the rights as not extending them to any property that has been found to have been unlawfully acquired.” (para 111)

3. IMPLICATIONS FOR CURRENT AND FUTURE CASES

(a) Due Diligence Is Crucial

• A party holding a title must trace and verify the legality of the entire chain of title, not just rely on the final registration.
• Where prior steps (e.g., allotment, transfer, subdivision) were flawed, the title may be declared null and void.

(b) Bona Fide Purchaser Defence Is Limited

• The defence of being an “innocent purchaser” will not hold if the original acquisition was illegal.
• Courts are increasingly requiring that purchasers conduct full due diligence, especially for public or formerly public land.

(c) Strategic Considerations in Litigation

• Opposing parties claiming title should be pressed to produce evidence of lawful initial allocation.
• Constitutional challenges can be mounted where land was acquired in breach of statutory or constitutional processes.

4. RISK ASSESSMENT / RECOMMENDATIONS

Scenario	Legal Risk	Recommended Action
Client holds title from initial allotment with full documentation	Low	Verify documents; maintain file for defense
Title acquired through secondary sale with gaps in allotment or vesting process	Moderate to High	Conduct historical search and advisory; consider application for regularization if available
Opponent relies on title but cannot produce initial allocation documents	High (for opponent)	Challenge root of title; invoke Dina Management and Article 40(6) in pleadings

 

5. CONCLUSION

The Dina Management decision reinforces a strict approach to land allocation and ownership, rejecting the notion that registered titles are automatically indefeasible. Legal teams must ensure that:

• Title investigations cover the full historical trail;
• Clients are advised early where defects exist;
• Strategic use of constitutional and case law tools are deployed to challenge questionable titles.

Prepared by:
Admin, Lawyers’ Guide

 

Disclaimer: This article is intended for general information purposes only and should not be construed as legal advice.

 

RENEWAL AND EXTENSION OF LEASEHOLD PROPERTIES IN KENYA

Introduction

In Kenya, land tenure is governed by two main systems: Freehold and Leasehold.

• Freehold Tenure allows Kenyan citizens to own land absolutely and indefinitely, without any time limitation. However, this form of tenure is not available to foreigners, who are constitutionally restricted from owning freehold land.
• Leasehold Tenure, on the other hand, grants an interest in land for a fixed period, subject to the payment of land rent to either the National Government or the County Government, depending on the location of the property. For non-citizens, the Constitution and relevant statutes limit lease terms to a maximum of 99 years.

 

Renewal of Expired Leases

Renewal of a lease becomes necessary after the lease term has expired and where the lessee failed to apply for an extension while the lease was still valid. Upon expiry, the interest in the land technically reverts to the lessor (usually the government), and the lessee must apply to have the lease renewed.

 

Extension of Leases Before Expiry

The extension of a lease is a proactive measure undertaken before the expiry of the existing lease term.

Section 13 of the Land Act, 2012 provides that:

• The National Land Commission (NLC) is mandated to notify the registered lessee of the impending expiry of their lease at least five (5) years before the lease expires.
• If the lessee fails to respond to the notification within one (1) year, the NLC is required to:
• Publish the notice in at least two newspapers of nationwide circulation.
• The lessee is then required to respond within six (6) months from the date of publication.

 

Process for Renewal or Extension of Lease

The procedural steps for renewing or extending a leasehold title in Kenya are as follows:

1. Engage a Licensed Physical Planner
• The process begins by engaging a licensed physical planner to prepare and submit applications for planning approvals from the relevant County Government.
2. Submission of Planning Documents
• Upon receipt of PPA2 forms and the preparation of a Planning Brief (in triplicate), these documents are submitted to the Director of Land Administration or the County Land Administrator, as applicable.
3. Circulation for Comments
• A circulation letter is issued by the Land Administrator to consult with:
• The Director of Physical Planning,
• The Director of Surveys, and/or
• The County Physical Planner.
4. Letter of No Objection
• Once comments are received and there are no objections, a letter of no objection is issued by the Director of Surveys.
5. Provisional Approval
• The Director of Land Administration then issues a provisional approval for the extension or renewal of the lease.
6. Re-Survey of the Property
• The parcel of land is re-surveyed by a registered surveyor, and a new Registry Index Map (RIM) is prepared.
7. Re-Valuation of the Property
• A valuation is conducted to determine the new land rent based on the revised land use, zoning, and market rates.
8. Final Approval
• The Director of Land Administration issues a final approval for the lease extension or renewal.
9. Preparation of Legal Documents
• A licensed advocate prepares the necessary documents for:
• Surrender of the old lease, and
• Preparation and registration of a new lease reflecting the new lease term.
10. Issuance of New Title
• Upon registration of the new lease, a new title deed or lease certificate is issued to the lessee.

 

Conclusion

Renewal and extension of leasehold land in Kenya is a multi-step process involving several government departments and professionals, including physical planners, surveyors, valuers, and advocates. Lessees are advised to initiate the extension process well before the lease expiry to avoid complications and potential loss of rights over their property.

 

Disclaimer: This article is intended for general information purposes only and should not be construed as legal advice. For specific legal guidance, please consult a qualified land law practitioner in Kenya.

 

LEGAL ANALYSIS OF THE LAND ALLOCATION & TITLING PROCESS

Introduction 

This process generally applies to land owned by the government or public institutions, especially in urban areas, and where no title exists yet. It involves a step-by-step procedure involving planning, surveying, deed preparation, and final registration of a leasehold interest.

1. Preparation of a Part Development Plan (PDP)

• First Step: Determine whether a Part Development Plan (PDP) has already been prepared for the land.
• A PDP is a planning document that indicates the intended use of the land — e.g., residential, commercial, public purpose, etc.
• It also outlines parcel boundaries, road reserves, plot sizes, and infrastructure plans.
• If no PDP exists:
• One must be prepared by a licensed Physical Planner at the County Government level.
• The draft PDP is then submitted to the Director of Physical Planning at the Ministry of Lands (National Government) for approval.
• Once approved, it becomes a legal framework for subsequent surveying and registration steps.

v  Legal Basis: Physical Planning Act (repealed, but still guides practice under transition); current framework is under the Physical and Land Use Planning Act, 2019.

2. Survey and Preparation of Cadastral File

• After PDP approval, a survey is carried out by a licensed land surveyor.
• The surveyor prepares:
• A survey plan (with precise measurements and coordinates of the parcel).
• A cadastral file, which includes the survey plan, beacon certificates, and computation sheets.
• These documents are submitted to the Director of Surveys at the Survey of Kenya for:
• Authentication and verification, to ensure the survey is accurate and compliant.
• Approval of survey plan, which becomes part of national mapping records.
• At this stage, “checking fees” must be paid for the authentication process.

 

v  Legal Basis: Land Registration Act, 2012; Survey Act (Cap 299).

3. Indenting by the Director of Land Administration

• Once the survey is approved, the documents are forwarded to the Director of Land Administration (formerly Commissioner of Lands) for "indenting."
• Indenting is a process where the Director checks:
• That the surveyed land does not overlap with any existing parcels.
• That the land is available for allocation and free of any encumbrances or claims.
• It serves as a final internal check before deed plans are issued and the lease prepared.

4. Preparation and Approval of Deed Plans

• Based on the approved survey, the Director of Surveys prepares a Deed Plan for each parcel.
• A Deed Plan is a legal diagram showing:
• The plot boundaries,
• Total acreage/size,
• Georeferencing coordinates.
• Once approved, the Deed Plan becomes a registrable instrument.
• An Advocate (or legal representative) may now submit a request to the Director of Land Administration to prepare a lease document using the approved Deed Plan.

v  Deed Plan is mandatory for leasehold title registration.

5. Execution and Registration of the Lease Document

• The Lease Document is prepared by the Ministry of Lands (Director of Land Administration), detailing:
• The terms of the lease (usually 99 or 33 years),
• The lessee’s rights and obligations,
• Rent payable (if any),
• Any user restrictions.
• Once prepared:
• The lease is executed (signed) by both the government (lessor) and the allottee (lessee).
• The signed lease is then registered at the relevant Land Registry where the land is located.
• A Certificate of Lease (also referred to as the Title Deed for leasehold property) is issued in the lessee’s name.

Legal Basis:

• Land Act, 2012
• Land Registration Act, 2012
• Land (Allocation of Public Land) Regulations, 2017
• Constitution of Kenya, 2010 – Article 62 (on public land)

 Summary of Key Institutions Involved

Step	Institution/Office
PDP preparation	County Physical Planning Department
PDP approval	Director of Physical Planning (Ministry of Lands)
Survey & Cadastral file	Licensed Surveyor + Survey of Kenya
Indenting	Director of Land Administration
Deed Plan approval	Director of Surveys
Lease preparation	Director of Land Administration
Registration	Land Registry (Ministry of Lands)

 

Final Notes:

• This process may take several months to years, depending on:
• Complexity of the land allocation,
• Government processing times,
• Availability of complete documentation.
• Proper due diligence and following the correct administrative hierarchy is crucial.
• It is advisable to engage a licensed surveyor, registered physical planner, and a qualified advocate throughout the process.

Disclaimer: This article is intended for general information purposes only and should not be construed as legal advice.  

ANALYSIS: GARNISHEE PROCEEDINGS IN KENYA

1. Introduction

Garnishee proceedings are a form of execution of court decrees where a creditor seeks to recover a debt by targeting a third party (the garnishee) who owes or holds money for the judgment debtor (JD). This is an indirect way of enforcing a judgment where the debtor is unable or unwilling to satisfy the decree.

2. Legal Framework

Garnishee proceedings in Kenya are governed primarily by:

• Civil Procedure Act, Cap. 21, Laws of Kenya — specifically Section 44 and 45.
• Order 23 of the Civil Procedure Rules, 2010.
• Relevant case law, including:
• Kenya Commercial Bank Ltd v. Samuel Kamau Macharia [2008] eKLR
• Africa Merchant Assurance Co Ltd v. George Kimani Njau [2020] eKLR

3. Key Definitions

Garnishment

A judicial process where the court directs a third party (garnishee) to pay a debt owed to the judgment debtor, directly to the decree holder.

Garnishee

Under Order 23 Rule 1, a garnishee is a person or institution who owes a debt to the judgment debtor or holds money/property on their behalf (commonly a bank).

Order Nisi

An interim court order requiring the garnishee to appear before the court and explain why the debt they hold on behalf of the JD should not be paid to the decree holder.

Order Absolute

The final order directing the garnishee to pay the funds directly to the decree holder, if no valid objection is raised.

4. Procedure for Garnishee Proceedings

Step 1: Application for Order Nisi

• The decree holder files an ex parte application under Order 23 Rule 1(1), supported by an affidavit.
• The affidavit must disclose:
• Existence of a valid decree.
• Existence of a debt owed by the garnishee to the judgment debtor.
• Evidence that the garnishee is within the court’s jurisdiction.

Step 2: Issuance of Order Nisi

• If the court is satisfied, it issues an Order Nisi directing the garnishee to appear and show cause why the debt should not be paid to the decree holder.
• This order must be personally served on the garnishee at least seven (7) days before the hearing — see Order 23 Rule 2.

Step 3: Hearing of Garnishee Show Cause

• On the return date, the garnishee appears in court and may:
• Admit liability and consent to the debt being paid to the decree holder.
• Contest the application (e.g., argue the funds are not available or are held in trust).
• If the garnishee fails to appear, the court may proceed ex parte and issue an Order Absolute.

Step 4: Order Absolute

• If satisfied, the court issues an Order Absolute under Order 23 Rule 4, compelling the garnishee to pay the sum directly to the decree holder.

5. Attachment of Bank Deposits

Legal Principle:

Money held in bank or building society accounts is considered a debt owed by the bank to the account holder and is, therefore, attachable through garnishee proceedings.

Limitations DO NOT prevent garnishment:

Even if the bank account has conditions such as:

• Withdrawal only upon notice,
• Requirement to present deposit book or withdrawal slip,
• Personal attendance of the account holder,

These do not affect the enforceability of a valid garnishee order once it is issued.

As per Order 23 Rule 1(1), the garnishee is liable regardless of the contractual terms, provided the funds belong to the judgment debtor.

Case law:
In Choice TV Limited v Safaricom Limited [2021] eKLR, the court affirmed that conditions placed by financial institutions cannot override a garnishee order once issued by a competent court.

6. Jurisdictional Considerations

• The garnishee must be within the jurisdiction of the court issuing the order.
• The court must have issued a valid decree and execution must be legally permissible.

7. Exceptions and Defenses by Garnishee

A garnishee may resist the order by proving:

• No debt is owed to the JD,
• The account is jointly owned and not solely in the name of the JD,
• The funds are held in trust or for a third party,
• A prior attachment or legal restriction exists on the account.

8. Limitation on Use of Garnishee Proceedings

Garnishee proceedings cannot be used:

• To attach immovable property (use attachment instead),
• Where no monetary decree exists,
• Where the judgment debtor has been declared insolvent or bankrupt, and distribution of assets must follow the insolvency process.

9. Enforcement of Order Absolute

Once the court issues an Order Absolute, the garnishee is legally bound to comply. Non-compliance may attract contempt proceedings or enforcement mechanisms under Section 38 of the Civil Procedure Act.

10. Conclusion

Garnishee proceedings offer an effective and lawful method for enforcing monetary decrees when the judgment debtor lacks liquid assets but has third parties indebted to them. However, strict procedural compliance is required, particularly regarding notice, jurisdiction, and documentation. Legal representation is highly recommended to avoid pitfalls that may render the process defective.

References:

• Civil Procedure Act, Cap. 21
• Civil Procedure Rules, 2010 – Order 23
• Kenya Commercial Bank Ltd v. Samuel Kamau Macharia [2008] eKLR
• Choice TV Limited v. Safaricom Limited [2021] eKLR
• Africa Merchant Assurance Co Ltd v. George Kimani Njau [2020] eKLR 

 

Disclaimer: This article is intended for general information purposes only and should not be construed as legal advice.   

Nairobi Hospital Ordered to Pay Former CEO Kshs 170,350,000 for Unlawful Termination: The Case of Pamba v Kenya Hospital Association for & on Behalf of the Nairobi Hospital & Another [2025] KEELRC 1776 (KLR)

Case: Pamba v Kenya Hospital Association for & on Behalf of the Nairobi Hospital & Another [2025] KEELRC 1776 (KLR)

I. Background of the Case

This case concerned the termination of Dr. Allan Pamba, who had been appointed as the Chief Executive Officer (CEO) of the Nairobi Hospital under a three-year employment contract that included a six-month probationary period. Under the terms of the contract, successful completion of the probation period would result in automatic confirmation, while unsatisfactory performance would lead to an additional three-month performance enhancement plan.

Dr. Pamba's employment was terminated at the end of the six-month probation period, allegedly due to underperformance and his refusal to undertake the extended performance improvement plan.

However, Dr. Pamba contended that the termination was:

• Unlawful, procedurally unfair, and politically motivated;
• Based on a retrospective and irregular evaluation;
• Conducted in violation of both labour law and the hospital’s internal HR policies.

He sought a declaration of unlawful termination, compensation for reputational damage, and other remedies (excluding reinstatement, which he later abandoned upon securing alternative employment).

II. Respondents’ Position

The Respondents (the Kenya Hospital Association and its Board Chair, Dr. Irungu Ndirangu) argued that:

• The Claimant had underperformed during his probation;
• The termination followed his refusal to engage in a performance improvement process;
• The decision was lawful and compliant with the Employment Act and internal HR policy.

III. Issues for Determination

The Court considered the following key issues:

1. Whether the Claimant’s contract was automatically confirmed upon expiry of the probation period;
2. Whether the Claimant was entitled to procedural fairness under Section 41 of the Employment Act;
3. Whether the Claimant was entitled to compensation for unfair termination;
4. Whether the Claimant was entitled to damages for reputational harm (defamation).

IV. Court’s Analysis and Findings

1. Automatic Confirmation of Employment

• The Court held that Dr. Pamba’s employment was automatically confirmed on 8th September 2020, the date his probation period lapsed.
• The Court emphasized that Section 42(2) of the Employment Act requires mutual and written agreement to extend a probationary period.
• As there was no communication or agreement on an extension, and no midpoint review conducted as required by the hospital’s HR policy, the probation was deemed completed.

2. Right to Fair Procedure under Section 41

• The Court ruled that since Dr. Pamba had been confirmed by operation of law, he was entitled to full procedural protections under Section 41.
• The purported extension of probation was unlawful, as it was made after the probation period had already expired, without prior communication or consultation.
• The Board meeting that approved the termination also violated policy, as performance review was not even on the agenda, and due process was not followed.

3. Entitlement to Compensation

• The termination was found to be unlawful, unprocedural, and unfair.
• The Claimant was not issued a notice to show cause, nor given an opportunity to be heard.
• The Court invoked Section 49(1)(c) of the Employment Act and awarded maximum compensation, including:
• Salary for the unexpired contract term;
• Leave dues;
• 12 months’ salary compensation.

4. Reputational Harm and Defamation

• The Court accepted that Dr. Pamba’s dismissal was handled in a demeaning and abrupt manner.
• The premature and unprocedural dismissal, along with media coverage on social media and newspapers, caused serious damage to his professional reputation.
• The Court awarded additional damages for reputational harm and emotional distress.

V. Final Judgment

The Employment and Labour Relations Court declared that:

• The termination was unfair, illegal, null and void;
• The Claimant was awarded a total of Kshs 170,350,000, comprising:
• Salary for the remainder of the contract;
• Terminal benefits and accrued leave;
• 12 months’ salary compensation under Section 49;
• General damages for reputational damage.

VI. Jurisprudential Significance

Confirmation by Operation of Law

• If an employer fails to formally communicate an extension of probation before the probationary period ends, the employee is automatically confirmed.

Strict Application of Section 41

• Section 41 of the Employment Act is mandatory: confirmed employees are entitled to notice and a fair hearing.
• Failure to follow this process renders termination unlawful and actionable.

Employer’s Internal Policies Matter

• The Court gave weight to the employer’s HR manual, noting that deviation from internal procedure further invalidated the termination.

Heavy Compensation for Non-Compliance

• The ruling is a stark reminder that non-adherence to statutory and procedural requirements can expose employers to significant financial liability.

 

VII. Practical Implications for Employers

1. Timely and Written Communication: Employers must give written, timely notice if intending to extend probation — silence can lead to automatic confirmation.
2. Compliance with Internal HR Policies: Internal procedures are legally enforceable and must be strictly followed.
3. Fair Hearing is Mandatory: All confirmed employees are entitled to notice, a hearing, and reasons for termination.
4. Handle Terminations with Sensitivity: Poor handling of executive exits, especially those involving media attention, can lead to additional defamation or reputational damages.

 

Disclaimer: This article is intended for general information purposes only and should not be construed as legal advice.   

 

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.