Kenya Union Of Domestic Hotels Educational Institutions And Hospital Workers (Kudheiha) v Aga Khan University Hospital Nairobi [2015] KEELRC 843 (KLR)
The bottom line
#A Kenyan court stopped Aga Khan Hospital's redundancy because the employer notified employees instead of directly notifying the union and labour officer as the law requires.
What this practically means
#Executive summary
#Key legal issues
#Whether the Respondent had commenced a redundancy process
The notice of 14th May 2015 evidencing a management decision to reorganise and declaring that some positions may be made redundant meant the redundancy process had commenced, notwithstanding the Respondent's claim that it was only a general notice inviting consultations
By 14th May 2015 the Respondent had assessed its operations and decided to reorganise, redesign departments and realign staff, concluding some positions would become redundant. That management decision is the employer's prerogative, but once exercised the CBA and section 40 of the Employment Act govern implementation. The notice was therefore one of intended redundancy, not mere information gathering.
Whether the section 40 notice requirements were complied with
The Respondent's notice directed to employees rather than directly to the Claimant union and the labour officer did not satisfy the mandatory procedural requirements of section 40 of the Employment Act and the CBA
The notices under section 40 are not mechanical; they must be carefully crafted and sent to the primary recipients - the union and ununionised employees with the labour officer receiving direct communication. Where parties have a CBA stipulating two months' notice, that must be honoured. Issuing a general notice to employees cannot circumvent the requirement to notify the recognised union directly.
Whether the ex parte orders of 15th May 2015 were obtained by fraud or non-disclosure and should be set aside
The Claimant's application was made in good faith without fraud; the Respondent's application to set aside or clarify the orders was declined
The Claimant moved the court immediately upon discovering the procedural flaw. Any aggrieved party where the law is not adhered to has recourse before the court. Issuing the correct notices would cause the Respondent no prejudice; correct procedure would have avoided the suit entirely, justifying costs to the claimant.
Legal principles established
#- A notice of intended redundancy under section 40(1)(a) and (b) of the Employment Act is a direct communication to the union and the labour officer, not a general notice to employees, and must state the reasons for and extent of the intended redundancy
- A redundancy process commences once an employer issues notice of intended redundancy following a management decision to reorganise, triggering the procedural requirements of the Employment Act and the CBA
Court orders
#- 1.The Respondent is hereby restrained from proceeding with the redundancy process/consultative meetings commenced with the notice dated 14th May 2015 pending the hearing and determination of the suit herein
- 2.On the Notice issued on 14th May 2015, time stopped running with the interim orders herein and such time shall not run as (a) above
- 3.The claim shall be heard on priority basis
- 4.Costs awarded to the claimant
- Jurisdiction invoked
- Sections 12(3)(viii) and 20 of the Industrial Court Act; Industrial Court Rules; Article 159 of the Constitution invoked by the Respondent
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 843 (KLR)", Case Analysis (2015). Cause No. 543 of 2015 (not stated in judgment; interlocutory ruling of 4 June 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/843/eng@2015-06-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.