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ELRCDismissedNot stated (Mombasa ELRC claim)· [2025] KEELRC 1157 (KLR)

Gwashe & 26 others v Kudheiha Workers (Cause E065 of 2024) [2025] KEELRC 1157 (KLR)

Employment and Labour Relations Court
24 April 2025
4,509 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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Fourteen former employees of Pride Inn Hotels and Investments Limited, Shanzu, sued their trade union, the Kenya Union of Commercial, Food and Allied Workers, alleging negligence and breach of fiduciary duty in the redundancy that ended their employment on 10 July 2021. They claimed that the union's head office received the employer's redundancy notice of 11 January 2021 but failed to communicate it to the Mombasa branch or the members until 9 July 2021, shortening the notice period, and that the union agreed to a reduced service charge without members' consent. They sought special damages of Ksh. 400,000 for privately instructed legal representation in Mombasa Cause No. E004 of 2022 (where their terminal dues claim was dismissed), general damages, a declaration of abdication, and a fine under section 39 of the Labour Relations Act. The union maintained that it received the notice, negotiated the affected numbers down from 75 to 35, wrote to the employer on 13 July 2021 seeking further dues, and had earlier intervened to stop the claimants' transfers. The court framed five issues: negligence, fiduciary breach, special damages, general damages and costs. It held that under section 40(1)(f) of the Employment Act the employer could terminate and pay in lieu of notice; that the union discharged its duty; that the claimants were bound by the Minister's COVID-19 MOU suspending CBA implementation; and that the choice to instruct private advocates was lawful but not at the union's expense. The claim was dismissed with costs assessed at Ksh. 200,000.

Key legal issues

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01

Negligence by the union in communicating the redundancy notice

Holding

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

Reasoning

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.

p. 7
02

Breach of fiduciary duty

Holding

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

Reasoning

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.

p. 9
03

Service charge agreement dated 18 March 2021

Holding

The claimants were bound by the Minister's MOU of 30 April 2020 suspending CBA implementation during COVID-19, which they did not contest

Reasoning

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.

p. 8

Legal principles established

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  • 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

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  1. 1.The claim is dismissed with costs to the respondent
  2. 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

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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, "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.