Gwashe & 26 others v Kudheiha Workers (Cause E065 of 2024) [2025] KEELRC 1157 (KLR)
The bottom line
#The Employment Court in Mombasa dismissed 14 former hotel workers' negligence and fiduciary-duty claims against their union, ordering them to pay Ksh.200,000 in costs.
What this practically means
#Executive summary
#Key legal issues
#Negligence by the union in communicating the redundancy notice
No negligence established; the respondent engaged the employer and reduced affected numbers from 75 to 35, and the employer retained the duty to communicate termination and could pay in lieu of notice
Section 40(1)(a) requires the employer to notify the union, which the employer did on 11 January 2021. The respondent negotiated and reduced affected employees from 75 to 35. Under section 40(1)(f), the employer could pay in lieu of notice. The claimants were paid notice pay and all terminal dues by the employer, and chose to instruct private advocates rather than use dispute mechanisms.
Breach of fiduciary duty
No breach; the union engaged the employer on redundancy and terminal dues, and the claimants' resort to private litigation was a lawful choice not chargeable to the union
The union wrote to the employer on 13 July 2021 seeking further terminal dues and had earlier intervened to stop the claimants' transfers. The matters on leave, uniform allowances and underpayments fell in Cause No. E004 of 2022, which was dismissed. The claimants cannot disown the union and then blame it for the outcome.
Service charge agreement dated 18 March 2021
The claimants were bound by the Minister's MOU of 30 April 2020 suspending CBA implementation during COVID-19, which they did not contest
The MOU between the Minister, COTU and FKE, gazetted on 26 June 2020, froze wage increments and CBA implementation during the COVID-19 period. The claimants, covered under COTU, were bound by the Minister's notice and did not contest it, so the service charge agreement could not found a breach of fiduciary duty.
Legal principles established
#- Under Section 40(1)(f) of the Employment Act, an employer may terminate employment on redundancy and pay in lieu of notice
- Negligence requires proof of duty of care, breach, and resulting damage
- A trade union's fiduciary duty requires the highest degree of accountability in executing members' instructions
Court orders
#- 1.The claim is dismissed with costs to the respondent
- 2.Costs assessed at Ksh.200,000 under Section 12(4) of the Employment and Labour Relations Act and Rule 70(4) of the ELRC (Procedure) Rules, payable within 30 days, thereafter attracting interest until paid in full
- Jurisdiction invoked
- Employment and Labour Relations Court Act (court seized of employment dispute; costs under Section 12(4) ELRA and Rule 70(4) ELRC Procedure Rules)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gwashe & 26 others v Kudheiha Workers (Cause E065 of 2024) [2025] KEELRC 1157 (KLR)", Case Analysis (2025). Not stated (Mombasa ELRC claim). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1157/eng@2025-04-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.