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)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 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.Whether the respondent complied with section 41 of the Employment Act in the disciplinary and engagement processes
- 3.Whether the claimants were entitled to compensation for salaries and underpayment for periods they did not work
- 4.Whether the claim for deduction and non-remittance of Union dues was proved
- 5.Whether the ELRC erred in dismissing the claim and in its treatment of the respondent's counterclaim
Key legal issues
#Compliance with section 41 of the Employment Act (fair hearing before termination)
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.
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.
Entitlement to compensation and underpayment claims
Compensation for salary for periods when claimants absented themselves from work is untenable; such claims amount to unjust enrichment.
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.
Non-remittance of Union dues
The claim failed for want of evidence; the Union did not state what arrears it claimed.
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.
The respondent's counterclaim
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.
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.
Legal principles established
#- 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
#- 1.The appeal is dismissed
- 2.Costs of the appeal are awarded to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- 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
#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
Claim for deduction and non-remittance of Union dues
No evidence was adduced showing which dues were deducted and not forwarded
Claim for underpayment
The claim was not pleaded with specificity and related to periods when the claimants were not working
Costs
This appeal has no merit and is dismissed with costs to the respondent.
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.
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.
The claims for compensation for salary when one is not working is untenable and we decline to award the same.
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.
This appeal has no merit and is dismissed with costs to the respondent.
Issues in the judgment
#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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.