Kenya Union of Domestic Hotels Educational Institutions and Hospital Workers (KUDHEIHA) v Aga Khan University Hospital Nairobi [2015] KEELRC 151 (KLR)
The bottom line
#A Kenyan court voided the Aga Khan Hospital's redundancy notice because it bypassed the union, showing employers must follow CBA consultation rules.
What this practically means
#Executive summary
#Key legal issues
#Validity of the redundancy notice of 14th May 2015
The notice was declared null and void because it was issued in violation of clause 11 of the Collective Bargaining Agreement and section 40 of the Employment Act, and its subsequent withdrawal could not cure the violation.
The parties had a Recognition Agreement and a CBA requiring that any redundancy notice be issued to the Claimant well in advance. The Respondent issued the notice directly to employees, copying the Claimant for information, contrary to clause 11 and section 40(1)(a). The Court found the notice invalid from inception; withdrawal while the suit was pending could not negate the finding of non-compliance.
Whether the Respondent justified the reasons for redundancy
Procedurally, once the initiating notice was found invalid, no subsequent step taken by the Respondent could stand; the Respondent could not ride on a procedural illegality.
The Court accepted that the employer has the prerogative to declare a redundancy provided it is justified, but where the process breaches fundamental provisions of law or agreed CBA terms, the law must prevail. The invalid notice meant any later steps had no legal consequence, and the Respondent's self-contradictory pleading showed the redundancy process had in fact commenced.
Whether the Respondent must abide by the Collective Bargaining Agreement
Clause 11 of the CBA, requiring notice to the Claimant, is binding and aligned with section 40(1) of the Employment Act; the Respondent was bound to share the redundancy process with the Claimant.
The Court of Appeal authority in Thomas De La Rue confirms parties may agree on better terms than the statutory minimum. Consultations must be real and inclusive, with the employer keeping an open mind, and the union must attend with an open mind. The employer should have invited the Claimant for consultations as early as December 2014 when rumours surfaced.
Whether the Respondent interfered with the Claimant members
No evidence of interference was found; the Respondent had, however, ignored the Claimant's role in representing unionised members.
Recognition of the Claimant is a legal process and the CBA is a legal document that must be respected in industrial relations. The Court also criticised the Respondent for issuing new notices outside the Court process while the suit was pending, describing that conduct as bad faith and contrary to the just administration of disputes.
Legal principles established
#- Parties to a collective agreement may agree on more favourable redundancy terms than the statutory minimum, and such terms take precedence
- Redundancy is a process that commences once a decision and need to reorganise has been reached; the statutory notice cannot hold back the intention of redundancy
- Consultation in a redundancy process must be genuine and not cosmetic
- A party whose contractual/legal rights have been violated retains recourse before the Court notwithstanding a subsequent withdrawal of the offending notice
Court orders
#- 1.Declaration that the Notice issued by the Respondent and dated 14th May 2015 is null and void
- 2.A finding that the notice of 14th May 2015 was in breach of clause 11 of the Collective Bargaining Agreement between the parties and section 40 of the Employment Act
- 3.A declaration that the notices issued after commencement of the suit are of no legal force, to avoid litigation in instalments
- 4.The Respondent shall meet the claimant's costs of the suit
- Jurisdiction invoked
- Section 12 of the Employment and Labour Relations Court Act (disputes arising from employment and labour relations, including redundancy and Collective Bargaining Agreements)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Union of Domestic Hotels Educational Institutions and Hospital Workers (KUDHEIHA) v Aga Khan University Hospital Nairobi [2015] KEELRC 151 (KLR)", Case Analysis (2015). Cause No 815 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/151/eng@2015-11-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.