Kenya Union Of Domestic, Hotels, Education Institution & Hospital Workers (kudheiha) VS Suchami Ivestments Limited T/a Amani Tiwi Beach Resort

The background to the judgment is a partial consent agreement of 17 June 2025.

The parties consented that:

The sum of Ksh. The amount of 33,242,946.08 is to be paid to the claimant within 14 days. The balance of Ksh. 32,872,024.32 to be addressed by the parties in written submissions.

The consent order was adopted as follows:

a)   The respondent is to pay the undisputed sum of Ksh. 33,343,946.08 within 30 days.

b)   On the balance, the parties to file written submissions with the respondent filing within 14 days.

c)   The claimant is to file within 14 days upon service.

d)   In default of (a) above, the payment of the undisputed sum, execution to issue.

The respondent did not pay as agreed. Execution proceedings have since taken effect.

To assist the court, the County Labour Officer, Kwale, has filed a report dated 24 May 2024 in the matter. This report includes the tabulations of the terminal due to the claimant members, the grievants. Each grievant's dues are assessed, with the total dues being Ksh. 66,314,973.

Claim

The claimant is a registered trade union, and the respondent is a registered business providing hospitality, hotel, and catering services.

The claimant represents unionised employees within the respondent, the grievants. The respondent maintained membership of the Kenya Association of Hotelkeepers and Caterers (KAHC)

The claimant entered into a collective agreement (CBA) with KAHC, under which the respondent is covered and bound. The CBA contained terms and conditions of service for employees in various departments, including food production, housekeeping, laundry attendants, maintenance, room stewards, and waitpersons.

In 2020, after the COVID pandemic, the respondent terminated the grievants' employment without adhering to the procedures set out in the CBA. They were issued an infinite number of notices to be away from work and only learned later that their employment had been terminated.

The claim is that the respondent officer, the general manager, the human resources manager, and the financial controller promised to pay terminal dues without specifying an effective date. The claimant issued demand notices without success, leading to the dispute being reported to the Minister without resolution. The claimant filed suit seeking orders that:

a)   Judgment be entered against the respondent for unlawful and unfair termination of employment of the grievants in contravention of section 43 of the Employment Act.

b)   Judgment be entered against the respondent for unlawful and unfair declaration of redundancy.

c)   The court to order the respondent to pay terminal dues, including the following:

i)   Service charge;

ii)   Salary deductions

iii)   Certificate of service

d)   Order that the respondent violates section 88 of the Employment Act.

e)   An order of reinstatement and payment of back wages and dues.

f)   Costs of the suit.

The claimant attached the list of the 133 grievants subject to the claim. The terminal dues owed were tabulated for each grievant.

The dues tabulated include the following:

a)   Notice pay,

b)   Severance pay;

c)   Unpaid service charge; and

d)   12 months' compensation.

In reply, the respondent denied the claim and stated that it was not in control of events in 2020 related to the COVID pandemic. Following the pandemic outbreak, all due procedures were adhered to, including issuing notices to all employees.

The grievants, through the claimant, unfairly refused to accept a payment plan that was manageable in the prevailing circumstances amid the pandemic. The claim members have absconded from duty and, to date, have refused the return-to-work formula, opting to sue the respondent.

The respondent denied being a party to the subject CBA referred to by the claimant. And hence its claim should be dismissed with costs.

The written submissions are analysed, and the issues for determination are whether there was unlawful and unfair termination of employment, whether there is a case of redundancy and whether the terminal dues claims for the 133 grievances are justified.

Determination

The context above, with the background of partial consent and payment of the terminal dues, is essential.

The circumstances leading to the termination of the grievants' employment are not contested. The fact of the covid pandemic is also not challenged.

However, the claim is that there is no due process in declaring redundancy, leading to the unfair termination of the employment of the 133 grievants.

In response, the respondent asserts that the grievants absconded from duty, refused the return-to-work form, and rejected the offer to pay their terminal dues in instalments.

The employment fact is not challenged. As the employer, the respondent had control under sections 35, 41, and 44 of the Employment Act when the grievants refused to attend work or deserted their work stations without justification. Where the employer, due to the pandemic or any other cause, fails to address it as an operational matter, it cannot turn around and blame the employee. The essence of section 40 of the Act is to secure the employer who is faced with a situation such as the one the respondent was in 2020 due to the pandemic. Due to the obvious operational challenges, declare a redundancy, pay the dues and allow the employee to leave.

In the case of Angela Shikuru Kondonga v Airtel Kenya Limited [2016] eKLR and the case of Al-Barakat Agency Limited v Bwetta (Appeal E134 of 2025)

[2025] KEELRC 3460 (KLR). The courts have emphasised that, despite operational matters such as the COVID pandemic, the employer is well protected under Section 40 of the CT.

In this regard, the court takes judicial notice of the fact that, following the COVID pandemic, the Minister and the Social Partners in relations took action and published a moratorium. In this case, the court also directed the County Labour Officer to go to the shop floor, retrieve the work records from the parties, and tabulate the lawful dues and the entitlements to the grievants.

Under sections 40, 43, and 45 of the Act, where the employer fails to comply with due process of law in laying off employees for operational reasons, the redundancy becomes unlawful. Despite having a justification for the covid pandemic, the due process requirements of sections 40 and 43 of the Act apply.

In this case, there was an unlawful declaration of redundancy, leading to the unfair termination of employment for the 133 grievants and claimant members.

The report of the County Labour Officer, Kwale, dated 24 May 2024, is imperative to apply in assessing the terminal dues owed to the grievants for the following:

a)   Notice pay based on the number of years worked per the CBA,

b)   Severance pay for years worked,

c)   Pay for the accrued leave days,

d)   Unpaid salaries,

e)   Service charges under the CBA terms,

 

The following dues are awarded:

The claimant has since been partially paid upon execution of the partial consent. Such shall be offset from the total balance due. Each party to bear its costs.

Delivered in open court at Mombasa on this 29th day of January 2026.

M. MBARŨ

JUDGE