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ELRCPartially AllowedCause No E409 of 2021· [2023] KEELRC 3088 (KLR)

Kenya Hotels & Allied Workers Union v Sun Developers t/a Golden Tulip Hotels (Cause E409 of 2021) [2023] KEELRC 3088 (KLR)

Employment and Labour Relations Court
30 November 2023
NMNzioki Wa Makau
853 words in judgment
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The bottom line

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A Kenyan hotel wrongly terminated a worker without following redundancy rules, and even without the worker's full claim being proven, the employer had to pay dues, compensation and costs.

What this practically means

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Executive summary

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The Claimant sued on behalf of a Grievant, Jackson Muthui Maluki, a room steward employed on 23rd January 2019 at Kshs. 12,000/- per month, who was terminated on account of low business by letter dated 21st July 2019 after an earlier incident in which he was accused of stealing from a client's safe, stripped naked and searched, with nothing found and the matter reported to Parklands Police Station. The Claimant sought one month's notice pay, June salary, pro-rated leave, service charge, wage underpayments, severance pay and maximum compensation. The Respondent filed no defence despite an unsuccessful attempt to refer the matter to the magistrates' court, did not cross-examine the Grievant despite being accorded the opportunity consistent with Article 50(1)(k) of the Constitution, and filed no submissions. The court found the Grievant's evidence uncontroverted. Notably, the termination letter itself tabulated the dues payable (leave Kshs. 5,917.81, notice Kshs. 12,000/-, service charge Kshs. 11,350/-, severance Kshs. 4,000/-), yet no evidence of payment was adduced. The court held the Respondent had not complied with the redundancy safeguards in section 40 of the Employment Act. Judgment was entered for terminal dues of Kshs. 33,267.81, compensation of two months' salary (Kshs. 24,000/-), costs, interest on the terminal dues from filing and on compensation from judgment, and a certificate of service. The full pleaded sum of Kshs. 282,582.90 was not awarded.

Key legal issues

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01

Whether the termination was an unfair redundancy

Holding

The termination was a redundancy not conducted in accordance with section 40 of the Employment Act, entitling the Grievant to the tabulated dues and compensation

Reasoning

The termination letter cited low business and promised recall if business improved, indicating redundancy. The Respondent nonetheless computed leave, notice, service charge and severance dues on the letter's reverse, yet no evidence showed payment. Having failed to follow section 40 safeguards and having adduced no evidence, the Respondent was liable. Compensation of two months' salary was awarded.

p. 2
02

Consequences of the Respondent's failure to file a defence or adduce evidence

Holding

The Grievant's evidence remained uncontroverted and the Claimant's case was entitled to succeed on the material placed before the court

Reasoning

The Respondent filed no defence despite the court's accommodation, failed to cross-examine the Grievant despite being afforded the opportunity under Article 50(1)(k), and filed no submissions. Following Janet Kaphiphe Ouma v Marie Stopes International, an undefended case with no evidence leaves the defence as mere allegations, and the Claimant discharged its burden of proof.

p. 2

Legal principles established

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  • An employer contemplating redundancy must accord the employee the safeguards under section 40 of the Employment Act
  • Where a party fails to adduce evidence despite being given opportunity, the opposing party's uncontroverted evidence stands and the defence remains mere allegations

Court orders

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  1. 1.The Grievant be paid his terminal dues of Kshs. 33,267.81
  2. 2.Compensation for Grievant of 2 months salary - Kshs. 24,000/-
  3. 3.Costs of the suit to the Claimant
  4. 4.Interest at court rates on the terminal dues from the date of filing suit till payment in full
  5. 5.Interest at court rates on the compensation from the date of judgment till payment in full
  6. 6.A certificate of service for the Grievant

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 50(1)(k)
  • Employment ActSection 40
  • Labour Relations Act 2007Section 69

Cases cited (2)

  • Yatin Vinubhai Kotak v Tucha Adventures & another
    [2000] eKLR
  • Janet Kaphiphe Ouma & another v Marie Stopes International (Kenya)
    HCCC No. 68 of 2007 (unreported)
Jurisdiction invoked
Section 69 of the Labour Relations Act 2007 (referral by Conciliator after unsuccessful conciliation)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kenya Hotels & Allied Workers Union v Sun Developers t/a Golden Tulip Hotels (Cause E409 of 2021) [2023] KEELRC 3088 (KLR)", Case Analysis (2023). Cause No E409 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3088/eng@2023-11-30

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.