Mwandoro v Superior Hotels Kenya (Appeal E021 of 2024) [2025] KEELRC 732 (KLR)
The bottom line
#A Kenyan court upheld a Covid-19 hotel redundancy as lawful but ordered the employer to pay Kshs 375,000 in unpaid salary arrears it could not prove it had paid.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the trial court erred by finding that the termination of the Appellant on account of redundancy was fair and lawful
- 2.Whether the trial court erred in awarding the Appellant Kshs. 330,000/= as terminal dues while disallowing the other reliefs
Key legal issues
#Whether the termination on account of redundancy was fair and lawful
The termination was substantively justified due to Covid-19 disruption and procedurally compliant; the appellant, a non-unionisable employee, was given notice and the labour office was copied
The court took judicial notice of Covid-19's disruption of the hotel industry, finding valid grounds for redundancy. On procedure, the termination letter dated 4th February 2021 was copied to the County Labour Office and offered one month's pay in lieu of notice, accrued leave, severance and other dues. As the appellant was not unionisable, notice to him and the labour office sufficed under section 40 of the Employment Act.
Whether the appellant was entitled to unpaid salary arrears and payment for the unexpired contractual period
Salary arrears of Kshs. 375,000/= awarded as the respondent produced no evidence of payment, but payment for the unexpired contract term refused as anticipatory income
The appellant claimed salary arrears of Kshs. 375,000/= in the lower court. The respondent produced no evidence of payment as required under section 74, and neither addressed the claim before the trial court nor on appeal, so the prayer succeeded. However, payment for the remainder of the contractual period was refused because the law does not recognise anticipatory income, following Peter Wesonga Opaka v Hilltop Preparatory School.
Legal principles established
#- Termination on account of redundancy must comply with section 40 of the Employment Act even where there is substantive justification
- Payment of salaries for an unexpired period of contract is not payable as the law does not provide for anticipatory income
- An employer's failure to produce evidence of payment of salary arrears shifts liability for the arrears to the employer
Court orders
#- 1.Terminal dues of notice, severance and service pay offered by the Respondent of Kshs. 330,000/= upheld
- 2.Unpaid salary arrears of Kshs. 375,000/= awarded to the Appellant (total award Kshs. 705,000/=)
- 3.No order as to costs in the lower court since the respondent had made an offer to settle the matter the terms of which the trial court merely adopted
- 4.The appellant shall have the costs of the appeal at the lower court scale
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Subordinate court (before Senior Resident Magistrate Hosea Mwangi)
- null
- Jurisdiction invoked
- First appellate jurisdiction over the subordinate court's judgment (Selle & Another v Associated Motor Boat Company Ltd principles applied)
Relief refused
#Payment for the remainder of the contractual period
The law does not provide for anticipatory income; payment for salaries for an unexpired period of contract is not due
Finding that the termination on account of redundancy was wrongful and unfair
The court found valid grounds for redundancy due to Covid-19 business disruption and that proper procedure under section 40 was followed
Costs
No order as to costs in the lower court; the appellant shall have the costs of the appeal at the lower court scale.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
This Court will as the trial court, take judicial notice of business and financial disruption Covid-19 caused to business when it was declared a global pandemic. To this extent, there were valid grounds for terminating the appellant's service on account of redundancy.
The Court therefore finds that the respondent followed proper procedure in declaring the appellant redundant.
payment for salaries for an unexpired period of contract are not due as the law does not provide for anticipatory income
In conclusion the Appellant's appeal hereby succeeds as follows: i. Terminal dues of notice, severance and service pay ofiered by the Respondent…….…Kshs. 330,000/= ii. Unpaid salary arrears …………….….. Kshs 375,000/= Total Kshs. 705,000
Issues in the judgment
#Costs order appears internally inconsistent - paragraph 39(iii) states no order as to costs in the lower court, while the trial court had awarded no orders as to costs, yet the court also states the trial court awarded terminal dues with 'no orders as to costs' before granting the appellant costs of the appeal
The Memorandum of Appeal date and the lower court judgment date coincide ambiguously and the year of the appeal memorandum (2024) precedes submissions dated November and December 2024, but the appeal is stated to challenge a judgment delivered 18th January 2024
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mwandoro v Superior Hotels Kenya (Appeal E021 of 2024) [2025] KEELRC 732 (KLR)", Case Analysis (2025). Memorandum of Appeal dated 20th January 2024 (lower court judgment of 18th January 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/732/eng@2025-03-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.