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ELRCDismissedMombasa ELRC Cause (transferred from Nairobi Cause No. E592 of 2023)

Kenya Hotels & Allied Workers Union v Sun Africa Hotels Limited & another; Kenya Union of Domestic Hotels, Educational Institutions and Hospital Workers (KUDHEIHA Workers) (Interested Party) (Cause 88 of 2023) [2025] KEELRC 974 (KLR)

Employment and Labour Relations Court
27 March 2025
5,507 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court dismissed a union's Ksh.100 million redundancy claim because no redundancy notice was ever issued, and ordered employees to vacate hotel premises within seven days.

What this practically means

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Executive summary

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The claimant, a registered trade union, sued on behalf of 114 grievants formerly or currently employed by the 1st respondent, Sun Africa Hotels Limited, claiming a declaration that their termination on account of redundancy was unfair and wrongful, terminal dues of Ksh.100,493,049.86, welfare dues of Ksh.490,000, Certificates of Service, exemplary damages, costs and interest. The grievants arose after the claimant learned of a Settlement Agreement dated 13 July 2023 between the 1st respondent and the interested party union settling full and final dues up to 28 February 2022 under CBA retirement clause 27A, ahead of the 2nd respondent's takeover of management from 1 March 2022 without liabilities. The 1st respondent raised sub judice and res judicata objections based on prior suits and counterclaimed for consolidation; the 2nd respondent denied liability, asserting continuity of employment and that the grievants remained its employees; the interested party defended the Settlement Agreement. The court framed four issues: sub judice/res judicata, propriety of the interested party's representation, the orders sought, and costs. It held the doctrines of sub judice and res judicata inapplicable because the claimant was not a party to the earlier suits and the causes of action differed. On the merits, the court found no redundancy notice was ever issued and the claimant's own witness remained in employment and paid by the 2nd respondent; the recognized union had legal standing to enter the Settlement Agreement. The claim was dismissed, as was the counterclaim. Employees served with termination notices were ordered to vacate and hand over within 7 days, failing which the 2nd respondent may enlist police assistance at the employees' cost. Each party was to bear its own costs.

Questions the Court framed

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

  1. 1.Whether the suit is sub judice and res judicata
  2. 2.Whether the representation by the interested party is proper
  3. 3.Whether the orders sought by the claimant should be issued
  4. 4.Who should pay the costs

Key legal issues

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01

Whether the suit is sub judice and res judicata

Holding

Neither doctrine applies; the cause of action arising from the 13 July 2023 Settlement Agreement is distinct from prior suits in which the claimant was not a party

Reasoning

Section 6 and Section 7 of the Civil Procedure Act require the same matter directly and substantially in issue between the same parties in a former or pending suit. The other suits (Cause No.960 of 2016, 49 of 2020, 924 of 2017) did not involve the claimant as a party. The impugned settlement agreement affected parties differently and different causes of action could arise from it, so its invocation elsewhere does not bar this claim.

p. 7
02

Whether the grievants were unfairly declared redundant

Holding

No redundancy was declared; no redundancy or termination notice was produced, so the claim premised on redundancy fails

Reasoning

Redundancy under Section 2 of the Employment Act arises only where a position is rendered superfluous, and a Section 40 claim requires the employer to have declared a redundancy. Neither a redundancy notice nor a termination notice was filed. The Settlement Agreement of 13 July 2023 was in the context of settling dues up to 28 February 2022 under CBA retirement clause 27A, not redundancy. The claimant's own witness testified he remains employed and paid by the 2nd respondent.

p. 9
03

Whether the interested party could lawfully settle employees' dues with the 1st respondent

Holding

Yes; as the recognized union with a Recognition Agreement and CBA, it had legal standing under the Labour Relations Act to enter the Settlement Agreement

Reasoning

The Settlement Agreement addressed full and final dues up to 28 February 2022 per CBA retirement clause 27A. The claimant had no recognition agreement or CBA with the respondents, while the interested party is the recognized union. The handover to the 2nd respondent from 1 March 2022 relieved it of liabilities prior to that date, and continuity of employment under Sections 12(6) and (7) of the Employment Act means no new claim arises against the 2nd respondent.

p. 9
04

Whether exemplary damages were awardable

Holding

No; the alleged violations were not particularized and no case was made for exemplary damages

Reasoning

A claimant seeking exemplary or aggravated damages must particularize the violations to allow the parties to respond and the court to decide. Drawing on the authorities cited, exemplary damages go beyond compensation and are meant to punish. The claimant did not make a case in this regard at all, so the head of claim fails.

p. 10

Legal principles established

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  • A claim founded on redundancy fails where no redundancy notice was issued; redundancy only arises where a position is rendered superfluous
  • A matter is not sub judice merely because an impugned agreement is invoked in different cases where the causes of action differ
  • The recognized trade union has legal standing to enter into a settlement agreement with the employer under the Labour Relations Act
  • Retirement is a lawful and legitimate mode of termination of employment, and employees who refuse to vacate premises over terminal dues invite serious sanctions

Court orders

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  1. 1.The claim is without merit and is hereby dismissed
  2. 2.The counterclaim is without merit and is hereby dismissed
  3. 3.The claimant to ensure its members issued with a termination notice exit the 2nd respondent's premises and undertake a handing over immediately and within the next 7 days from the date hereof, failure to which the 2nd respondent shall secure its properties through the assistance of the police at the cost of the subject employees
  4. 4.Each party to bear its costs save for order (b) above

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Employment and Labour Relations Court Act, Section 22 (representation issue); first-instance employment cause under the Employment Act and Labour Relations Act

Relief refused

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Declaration that termination on account of redundancy was unfair and wrongful

No redundancy notice was ever filed or declared; the claim is premised on a redundancy that does not exist

p. 9

Payment of Ksh.100,493,049.86 terminal dues and Ksh.490,000 welfare dues

No redundancy was declared and the context of the settlement agreement was retirement under CBA clause 27A; the claim premised on redundancy is without merit

p. 10

Exemplary damages

The violations were not particularized; the claimant made no case justifying exemplary damages

p. 10

Certificates of Service

Such dues are only available at the end of employment, and the grievants (including Mwajoto) remain in employment

Costs

Each party to bear its costs save for the costs of removing employees from the 2nd respondent's premises, which shall be met by the subject employees

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.

Accordingly, the claim is without merit and is hereby dismissed.
p. 11Final orders - dismissal of claim
The counterclaim is without merit and is hereby dismissed;
p. 11Final orders - dismissal of counterclaim
The claimant to ensure its members issued with a termination notice exit the 2nd respondent's premises and undertake a handing over immediately and within the next 7 days from the date hereof, failure to which the 2nd respondent shall secure its properties through the assistance of the police at the cost of the subject employees.
p. 11Final orders - vacation of premises and handing over
Each party to bear its costs save for (b) above.
p. 11Costs
In this case, without the redundancy notice, any termination of employment of any grievant to claim under a dispute over alleged wrongful, unlawful, and unfair redundancy is without merit.
p. 9Requirement of a redundancy notice
The invocation of the impugned agreement in difierent cases does not render the matter sub judice.
p. 7Sub judice doctrine
The doctrine of res judicata does not apply in this case.
p. 8Res judicata
As the party recognized by the 1st respondent, the interested party had the legal standing under the Labour Relations Act to enter into such an agreement.
p. 9Standing of recognized union

Issues in the judgment

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minor

The judgment refers inconsistently to one of the prior suits as 'Mombasa ELRC Cause No.924 of 2017' and 'Mombasa ELRC Cause No.924 of 2021'

minor

The interested party is described as having filed 'Mombasa ELRC Cause No.49 of 2022' while other passages cite Cause No.49 of 2020

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 Hotels & Allied Workers Union v Sun Africa Hotels Limited & another; Kenya Union of Domestic Hotels, Educational Institutions and Hospital Workers (KUDHEIHA Workers) (Interested Party) (Cause 88 of 2023) [2025] KEELRC 974 (KLR)", Case Analysis (2025). Mombasa ELRC Cause (transferred from Nairobi Cause No. E592 of 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/974/eng@2025-03-27

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