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)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the suit is sub judice and res judicata
- 2.Whether the representation by the interested party is proper
- 3.Whether the orders sought by the claimant should be issued
- 4.Who should pay the costs
Key legal issues
#Whether the suit is sub judice and res judicata
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
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.
Whether the grievants were unfairly declared redundant
No redundancy was declared; no redundancy or termination notice was produced, so the claim premised on redundancy fails
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.
Whether the interested party could lawfully settle employees' dues with the 1st respondent
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
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.
Whether exemplary damages were awardable
No; the alleged violations were not particularized and no case was made for exemplary damages
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.
Legal principles established
#- 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
#- 1.The claim is without merit and is hereby dismissed
- 2.The counterclaim is without merit and is hereby dismissed
- 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.Each party to bear its costs save for order (b) above
The bench
#One judgment of the whole court — no separate or dissenting opinions.
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
#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
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
Exemplary damages
The violations were not particularized; the claimant made no case justifying exemplary damages
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
#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.
The counterclaim is without merit and is hereby dismissed;
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.
Each party to bear its costs save for (b) above.
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.
The invocation of the impugned agreement in difierent cases does not render the matter sub judice.
The doctrine of res judicata does not apply in this case.
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.
Issues in the judgment
#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'
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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.