Kenya Union of Domestic Hotels Educational Institutions Hospitals and Allied Workers v Sucham Investment Limited t/a Amani Tiwi Beach Resort (Cause E032 of 2023) [2026] KEELRC 213 (KLR) (29 January 2026) (Judgment)

Kenya Union of Domestic Hotels Educational Institutions Hospitals and Allied Workers v Sucham Investment Limited t/a Amani Tiwi Beach Resort (Cause E032 of 2023) [2026] KEELRC 213 (KLR) (29 January 2026) (Judgment) Neutral citation: [2026] KEELRC 213 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Mombasa Cause E032 of 2023 M Mbarũ, J January 29, 2026 Between Kenya Union of Domestic Hotels Educational Institutions Hospitals and Allied Workers Claimant and Sucham Investment Limited t/a Amani Tiwi Beach Resort Respondent Judgment 1.The background to the judgment is a partial consent agreement of 17 June 2025. 2.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. 3.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. 4.The respondent did not pay as agreed. Execution proceedings have since taken effect. 5.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 6.The claimant is a registered trade union, and the respondent is a registered business providing hospitality, hotel, and catering services. 7.The claimant represents unionised employees within the respondent, the grievants. The respondent maintained membership of the Kenya Association of Hotelkeepers and Caterers (KAHC) 8.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. 9.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. 10.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](/akn/ke/act/2007/11).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 deductionsiii.Certificate of serviced.Order that the respondent violates section 88 of the [Employment Act](/akn/ke/act/2007/11).e.An order of reinstatement and payment of back wages and dues.f.Costs of the suit. 11.The claimant attached the list of the 133 grievants subject to the claim. The terminal dues owed were tabulated for each grievant. 12.The dues tabulated include the following:a.Notice pay,b.Severance pay;c.Unpaid service charge; andd.12 months' compensation. 13.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. 14.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. 15.The respondent denied being a party to the subject CBA referred to by the claimant. And hence its claim should be dismissed with costs. 16.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 17.The context above, with the background of partial consent and payment of the terminal dues, is essential. 18.The circumstances leading to the termination of the grievants' employment are not contested. The fact of the covid pandemic is also not challenged. 19.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. 20.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. 21.The employment fact is not challenged. As the employer, the respondent had control under sections 35, 41, and 44 of the [Employment Act](/akn/ke/act/2007/11) 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. 22.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. 23.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. 24.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. 25.In this case, there was an unlawful declaration of redundancy, leading to the unfair termination of employment for the 133 grievants and claimant members. 26.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, 27.The following dues are awarded: No. | Name | Total (Kshs) ---|---|--- 1 | James Kenga Charo | 399,194 2 | Fredrick Kasala Otieno | 461,259 3 | Karoli Muga Omolo | 406,637 4 | Mdoe Bemwaka Kadi | 336,053 5 | Said Rashid | 666,767 6 | Hamisi Rashid Mwayuya (Deceased) | 532,351 7 | William Dzombo | 460,865 8. | Ali Hussein Mkalla | 370,303 9 | Mwacharo Alawe Mwacharo | 359,029 10. | Mwanamkuu Ali Dzivwa | 573,370 11 | Nassir Said Mwakauli | 550,905 12 | Abbas Abdalla Juma | 373,186 13. | Camlus Ochieng Baraza | 514,725 14 | Rebeccah Khayumbi Wasike | 399,194 15. | Mwanajuma Juma Ndeka | 413,635 16. | Amina Salim Mwazondo | 538,795 17. | Mwanajuma Omar Mwero | 429,409 18. | Albanus Kioko Kieti | 808,957 19 | Saddick Rimba Charo | 819,118 20 | Mohammed Nyanje | 727,878 21. | Mribe Mwambega | 959,918 22 | Salim Juma Mgala | 673,190 23 | Naomi Sholo Wawasi | 471,400 23 | Rashid Mohammed Saria | 861,917 24. | Mwinyi Nassoro Mwasurutani | 245,935 25. | Kisali Nickson | 329,431 26. | Mwalimu Salim Mwishee | 392,776 27 | Rajab Mselem Katengezi | 335,514 28 | Brian Kibet Mengwa | 581,598 29. | Sila Mulinge | 443,514 30. | Nyiro Mweru | 443,514 31 | Pendo Tuva Mgandi | 786,828 32. | Nickson Liova | 509,702 33. | Mwanaidi Rashidi Matuh | 463,718 34 | Musee Yusuf Makiti | 477,015 35 | Mebakari Bakari Matamu | 405,862 36 | Hidaya Juma Kulembwa | 486,808 37 | Mwahui Mbui | 307,801 38 | Mohamed Ali Jaffa | 231,778 39. | Athman Rashid Chidzuga | 278,643 40. | Salim Mohammed Mwasema | 509,634 | Fredrick Mwangolo Mwatua | 547,878 Kadiri Ali Kijito | 955,070 Kevin Muleli Kavagi | 337,638 Stephen Muoki Musyoka | 343,299 Mohammed Ismat | 660,041 Swaleh Suleiman Masemo | 442,514 Hamisi Hassan Tabalu | 301,257 Kennedy Ochieng Obar | 485,922 Robert C. Munga | 415,164 Juma Shaban Juhudi | 296,177 Benstone Malika Wasidia | 974,532 Govi Dzila Govi | 443,552 Victor Ndunda Kieke | 1,077,797 Abdallah Bakari Sheria | 312,070 Salama Mwinyi Mwakodi | 509,032 James Onkui Ongeta | 308,000 Abdallah Mohamed Mwaisha | 460,388 Samuel Muli | 502,215 Hamisi Salim Lwambi | 636,280 Bakari Salimu Chivwato | 93,117 Ali Mrisa Kabi | 699,163 Jonathan Mengele | 725,964 Juma Mohammed | 514,736 Mejumaa Juma | 575,671 Fanel Yida Lusava | 610,798 Twalib Ali Mwaricha | 571,471 Mohammed Guya | 822,662 Salama Masoud | 573,386 Joy Ambia Sigar | 379,625 Hussein Salim Mwatumwa | 399,194 Kennedy Abusa | 651,978 Franklin Gona | 539,625 Salim Abdallah Chikoso | 507,612 Karisa Ngumbao | 364,055 Rashid Mwaisa | 583,622 Simon Munga | 643,641 Sammy K. Munyithya | 779,565 Ali Kizungu Kijoto | 752,764 Salim Mohammed Abeid | 702,310 Jumaa S. Mwacheo | 702,310 Stephen Ruwa | 509,664 Hamisi Mwaliganza | 733,670 Hassan Ali Kkoyo | 477,669 Halima Hassan | 521,962 John Karanja | 710,528 Juma Salim Masito | 475,600 Joseph Kahindi Charo | 345,494 Peter Otieno | 568,135 Fatuma Mohammed Mwajora | 399,194 Halima Abdalla | 537,189 Irene Kauchi Farrah | 510,624 Sharon Mbeyu Mwangombe | 670,949 Hamisi Foro | 217,089 Hemedi Hamisi | 452,001 Abdallah Mwashobo | 480,224 Abdallah Salim Mataza | 810,917 Evans Onyisa | 399,515 Sifa Peter | 284,680 Idd Hamisi Mwakuchengwa | 398,703 Benard Tsaka Chokweh | 690,614 Suleiman Omar | 434,192 Domnic Owino | 325,576 Thoma Onsare Mbonga | 434,192 Charles Lando | 778,472 Silas Mwawasi | 719,519 John Kitali (Deceased) | 396,711 Robert Maganga | 770,498 Chrispin Ngoma | 364,056 Enock Orina | 420,981 Suleiman Ramadhani Mwachinazo | 429,078 Christine Chiro Karisa | 444,471 Alice Adhiambo | 384,752 Isaac Nyangali | 684,774 Hamadi Ali Mwanditi | 477,669 Benson Mwendwa | 596,357 Mwasambu Lewa Zomolo | 577,801 Shaban Fadhili | 583,427 Muriki Peter Nderitu | 497,130 Samuel Charo | 532,227 Josess Muthini | 527,550 Mazoe Mohamed | 471,113 Shaban Ndurya | 318,869 Edward Kyalo Jackson | 579,122 Nasir Shaban | 429,271 Charles Ouko Ogutu | 397,164 Doreen Ziro | 332,408 Erick Gumba Miruka | 576,861 Grand Total | 66,218,883 46.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**