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Court of AppealDismissedNot stated in the judgment

Kenya Union of Domestic, Hospital, Educational Institutions and Allied Workers Limited v Board of Management Murang'a High School (Civil Appeal 180 of 2020) [2026] KECA 72 (KLR)

Court of Appeal of Kenya
30 January 2026
2,184 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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The Court of Appeal ruled that Kenyan school workers who defied a court order and refused to return to work lost their jobs through their own choice, not victimisation.

What this practically means

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Executive summary

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This is a first appeal from the Employment and Labour Relations Court at Nyeri, which on 24th April 2020 dismissed a claim brought by the appellant Union on behalf of 20 non-teaching staff of a national school. The claimants sought unpaid January 2016 salaries, an injunction against termination or victimisation, and an order for remittance of Union dues; the employer counterclaimed for restitution of settlement monies. The Court of Appeal (Karanja, ole Kantai and Korir, JJAA) re-appraised the evidence under Rule 31(1)(a) of the Court of Appeal Rules and dismissed the appeal with costs to the respondent. The Court found that friction began with the Union's entry into the workplace, but that the respondent had gone to great lengths to accommodate non-teaching staff: workers who resumed duty suffered no loss and continued as Union members. Meetings involving staff, the employer and Union representatives satisfied the hearing requirements of section 41 of the Employment Act. The claimants, on the Union's advice, refused to resume work in defiance of a court order of 17th February 2016 and thereby negotiated themselves out of their jobs. Claims for salary and underpayment for periods of unauthorised absence were held untenable and amounting to unjust enrichment, and the Union dues claim failed for want of evidence. The Court affirmed the dismissal of the counterclaim, since the monies were paid under the strength of a court order pursuant to an agreement during the suit, and no cross-appeal was filed. The decision below was affirmed in its entirety.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the claimants were victimised by the respondent for joining the Union, or whether they instead incited workers and frustrated their own employment
  2. 2.Whether the respondent complied with section 41 of the Employment Act in the disciplinary and engagement processes
  3. 3.Whether the claimants were entitled to compensation for salaries and underpayment for periods they did not work
  4. 4.Whether the claim for deduction and non-remittance of Union dues was proved
  5. 5.Whether the ELRC erred in dismissing the claim and in its treatment of the respondent's counterclaim

Key legal issues

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01

Compliance with section 41 of the Employment Act (fair hearing before termination)

Holding

The respondent complied with section 41 by holding meetings involving staff, the respondent and Union representatives, giving the claimants an opportunity to be heard; the claimants, not the employer, breached the employment relationship.

Reasoning

The Court found that friction began with the Union's entry into the workplace, but the respondent went to great lengths to accommodate non-teaching staff despite administrative changes. Staff who resumed work suffered no loss of privilege. Meetings were held with staff, the respondent and Union representatives to keep the peace, satisfying section 41. The claimants, advised by the Union, chose not to co-operate and defied a court order of 17th February 2016 to resume work, thereby negotiating themselves out of employment.

p. 4
02

Entitlement to compensation and underpayment claims

Holding

Compensation for salary for periods when claimants absented themselves from work is untenable; such claims amount to unjust enrichment.

Reasoning

The claimants stayed away from work from February 2016 despite a court order maintaining status quo, yet claimed dues up to 2018. They were also said to have been paid remuneration while the matter was in court, which they did not deny, and they did not specify the extent of their claim separate from amounts already paid. Claims for salary and underpayment when not working would constitute unjust enrichment and cannot stand.

p. 4
03

Non-remittance of Union dues

Holding

The claim failed for want of evidence; the Union did not state what arrears it claimed.

Reasoning

No evidence was brought forward showing which Union dues were deducted and never forwarded to the appellant. The trial court had noted mischief in the manner the appellant filed numerous forms filled with errors in member numbers and signatures and did not state what Union arrears it was claiming. The appellate Court agreed the claim was not made out.

p. 4
04

The respondent's counterclaim

Holding

The ELRC was correct to dismiss the counterclaim because the monies were paid under the strength of a court order and pursuant to an agreement during the pendency of the suit; the respondent cannot renege on that goodwill.

Reasoning

The respondent did not file a cross-appeal on the dismissal of its counterclaim. It paid the counterclaimed amounts after an agreement during the pendency of the suit, believing it had paid correctly calculated dues. Having paid under the strength of a court order and in good faith, it could not be heard to seek a refund or renege on that settlement.

p. 5

Legal principles established

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  • An employer who engages employees and their union representatives in meetings and gives them an opportunity to be heard satisfies the hearing requirements of section 41 of the Employment Act; employees who, on the advice of their union, defy a court order and refuse to resume work cannot later blame the employer for the loss of employment.
  • Claims for salary or compensation for periods during which an employee absented himself or herself from work without permission are untenable and amount to unjust enrichment.

Court orders

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  1. 1.The appeal is dismissed
  2. 2.Costs of the appeal are awarded to the respondent

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

majority

Wrote the judgment

majority

Wrote the judgment

On appeal from
Employment and Labour Relations Court at Nyeri
Not stated in the judgment
Jurisdiction invoked
First appeal under Rule 31(1)(a) of the Court of Appeal Rules, empowering the Court to re-appraise evidence and draw inferences of fact

Relief refused

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Setting aside the ELRC judgment and allowing the claim, including assessment of damages for the claimants

The claimants absented themselves from work against a court order and failed to prove victimisation, underpayment or non-remittance of Union dues; compensation for periods not worked would amount to unjust enrichment

p. 4

Claim for deduction and non-remittance of Union dues

No evidence was adduced showing which dues were deducted and not forwarded

p. 4

Claim for underpayment

The claim was not pleaded with specificity and related to periods when the claimants were not working

p. 4

Costs

This appeal has no merit and is dismissed with costs to the respondent.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The claimants were heard in the presence of Union representatives and there was no breach of the requirements of section 41 of the said Act at all.
p. 4Fair hearing under section 41 of the Employment Act
The claims for compensation for salary when one is not working is untenable and we decline to award the same.
p. 4No compensation for periods of unauthorised absence
we are in agreement with the learned Judge that the appellant's members by their own actions frustrated their employment unlike their colleagues who opted to adapt to the dynamics of the evolving workforce and resumed duties.
p. 4Employees who defy a court order and refuse to resume work negotiate themselves out of employment
This appeal has no merit and is dismissed with costs to the respondent.
p. 5Final orders and costs

Issues in the judgment

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minor

The judgment does not state the case number of the appeal or of the ELRC suit, nor the name of the school or the ELRC judge, which limits full identification of the parties and the decision below.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kenya Union of Domestic, Hospital, Educational Institutions and Allied Workers Limited v Board of Management Murang'a High School (Civil Appeal 180 of 2020) [2026] KECA 72 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/72/eng@2026-01-30

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.