Kenya Hotels and Allied Workers Union v Boma Hotels/Red Court Hotel

3. d. That the honourable court be pleased to order the respondent to pay special damage for being terminated unfairly before retirement. e. That the cost of this suit be provided for by the respondent. The Respondent led a Memorandum of Response dated 26th June, 2019 denying Claimant’s capacity to sue on behalf of the grievant. However, it admitted that it employed the grievant on 1st February, 2012 and terminated her services on 11th April, 2018. It averred that the termination was fair since it was based on just reasons and fair procedure followed. Finally, it averred that the reliefs sought are not merited and prayed for the suit to be dismissed with costs. Evidence 4. The grievant testied as CW1 and adopted her statement dated 20th June, 2018 as evidence in chief and produced 11 documents as exhibits. In brief, her evidence was that she was employed by the respondent on 1st February, 2012 as head of Health Club for a consolidated monthly salary of Kshs.200,000 which was subsequently increased to Kshs.243,500. Before joining the respondent, she was a member of the Claimant Union and after joining the respondent, she privately maintained her membership. 5. She stated that on 23rd January 2018, the respondent’s Acting General Manager accused her of errors committed by a temporary gym instructor despite her prompt intervention. The Manager also accused her of theft committed by a receptionist, a matter she heard earlier reported to the Human Resource Manager. She had instructed a Mr. Vincent Njau to follow up the matter while she was away on one week leave, and the matter ended with the dismissal of the receptionist. 6. She further stated that despite making a satisfactory explanation of the two allegations, her services were terminated. She averred that the termination was unfair because she was not accorded any hearing in the presence of a fellow employee of her choice. 7. She maintained that the termination was mere witch hunt by the Acting General Manager, who assumed the role of the Human Resource Manager and denied her opportunity to defend herself. She stated that she had a stellar performance devoid of any warning which had prompted the respondent to increase her salary and appreciate her services. 8. She contended that eorts to resolve the matter through the Labour Oce was frustrated by the respondent forcing her to le this suit through the Claimant. She averred that she was red while at the age of 52 years and chances of securing another job are slim. Therefore, she prayed for the reliefs set out in the Memorandum of Claim. 9. On cross examination, she admitted that she was a Manager and her duties included overseeing operations and nances. She further admitted that there were sta under her. She also admitted that a customer complained against the Gym Instructor and she reported to the Human Resource Manager. She contended that the customer and the Gym Instructor were friends and he gave money to the instructor to buy Gym kits for him but the Gym Instructor failed to buy and his salary was deducted to refund the customer money. In her view, that matter was resolved as regards to the theft at the reception, she contended that she had not been made aware of the same. 10. She admitted that she was served with show cause letters and after her response, she was suspended and instructed to attend disciplinary hearing on 15th March, 2018. However, no hearing took place about the allegations in the show cause letter as the General Manager merely asked her to explain what was her problem with the Group Human Resource Manager at the Red Cross. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2587/eng@2026-09-28 2

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11. She admitted that she never cleared with respondent after the termination and therefore she was never paid anything. 12. In re-examination, she stated that the show cause letters were about money given to the Gym instructor, and loss of Company revenue but the termination letter cited inability to provide leadership and address the challenges in her department. She further averred that no hearing took place on 15th March, 2018 and the Minutes led by the respondent are not signed by her or anybody else. 13. Finally, she stated that no money was lost and that she ensured that the Kshs.6,000 given by the Client for purchase of the outt was deducted from the Gym Instructor’s salary. 14. The respondent called its Human Resource Manager, Miss Mildred Kikechi as its only witness. She testied as RW1 and adopted her statement dated 16th February, 2026 as her evidence in chief and produced 9 documents as exhibits. In brief, she admitted that the grievant was employed by the Respondent until 11th April, 2018 when her services were terminated for negligence that led to lapses and losses in the department she was in charge of. 15. She contended that due process of law was followed before terminating the services of the grievant. She was served with show cause letter dated 23rd February, 2018 and 28th February, 2018 notifying her of impending termination. The letters informed her of the allegations raised in the investigations done, namely unaccounted loss of Company revenues at the Health Club and her failure to provide guidelines to the sta on dierent discount levels to Clients. Finally, the decision to terminate her services was communicated by the letter dated 11th April, 2018. 16. She maintained that the termination was fair and lawful and the Claimant is not entitled to the reliefs sought. Therefore, she prayed for the suit to be dismissed with costs. 17. On cross examination, she contended that the Claimant was dismissed for performance issues. She contended that the termination was not in connection with the Kshs. 6,000 given to the Gym Instructor by a Client. The reason for the termination was her general performance including failure to provide leadership and decline in revenue generation. The Claimant appealed and a decision was given. She averred that the grievant was paid terminal dues but no documentary proof was led as exhibit. 18. She admitted that the matter was referred for conciliation but no resolution was reached and hence this suit. She denied being aware of any audit requisitioned by the Claimant to conrm the alleged diminished revenue. 19. In re-examination, she contended that failure by Head of Department to provide leadership is a valid reason for termination of services under the Human Resource Policy Manual. Likewise, frequent loss of revenue is also a valid reason for termination under the Human Resource Policy Manual. 20. Finally, she maintained that fair procedure was followed since the grievant was served with show cause letters followed by a fair disciplinary hearing. Submissions and Issues for determination 21. After the hearing, both sides led written submissions. Having considered the submissions, pleadings and evidence, it is clear that the grievant was employed by the respondent until 11th April, 2018 when her services were terminated for negligent performance of duty. It is also clear that she held a management position but she is represented in this suit by a trade union. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2587/eng@2026-09-28 3

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22. The issues for determination are:a. Whether the suit is incompetent for Claimant’s lack of capacity to sue on behalf of the grievant. b. Whether the respondent unfairly/unlawfully terminated the grievants’ services. c. Whether the reliefs sought are merited. Incompetent/Defective Suit 23. From the onset, the respondent objected to the Claimant’s capacity to sue on behalf of the grievant since she was excluded from Union representation because she held a management position of Head of Health Club. She in deed admitted that fact during cross examination. She further admitted that there were sta under her supervision and she exercised oversight over nances in her department. 24. I have considered the evidence on record including the grievant’s appointment letter dated 2nd November, 2011 which is partly copied below:“ Re: Letter of Appointment Further to our interview, we wish to inform you that Red Court Hotel Ltd trading as The Boma Hotels is pleased to oer you employment in the position of Health Club [sic] at the Boma Nairobi with eect from 1st February, 2012. We are condent that you will nd working for the Boma Hotels exciting and challenging and you will embrace the duties and responsibilities demanded by this position. This position is management position, and as stipulated in the Industrial Relations Charter, your position shall be excluded from Union representation. You are therefore not eligible to a share of service charge…” 25. The grievant read and understood the terms and conditions set out in the oer letter and accepted the same by signing it. Clause 4 of the oer letter was also clear that she was a management sta and as such not entitled to payment for overtime work. Therefore, there is no doubt that the grievant was a management sta excluded from Union representation and she was at all material times aware and agreeable to that reality. 26. In Banking, Insurance and Finance Union (K) v Standard Chartered Bank of Kenya Ltd [2013] KEELRC 886 (KLR), Ndolo J, while dealing with a grievant similar to the instant case observed that:“ By virtue of his position, Union membership was not available to the second grievant and he could not therefore have been a member of the Claimant Union. The logical conclusion then is that the Claimant Union had no capacity to bring a claim on behalf of the second grievant and to that extent, the claim was incompetent ab initio. Ultimately, the second grievant’s claim fails and is dismissed.” 27. I entirely agree with the above decision and emphasize that a Trade Union lacks locus standi to institute suit on behalf of an employee who is excluded from Union representation by virtue of holding a management position in his employer’s enterprise. Any such suit instituted is incompetent ab initio and must fail. Any other view would be encouraging untidiness in the Labour sector. It would also https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2587/eng@2026-09-28 4

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undermine the age old Industrial Charter that categorizes some employees as unionisable and others non-unionisable for purposes of healthy labour relations. 28. In view of the foregoing conclusion, I hold the suit herein having been instituted by a Trade Union on behalf of a former management sta who was expressly excluded from Union representation is incompetent as the Union lacked the locus standi to bring the suit on behalf of the grievant. 29. Accordingly, I will not proceed to consider the merits for the case since the court lacks jurisdiction to do so as it has not been properly moved. Jurisdiction is only exercisable where the proper parties are before the court. In this case, the jurisdiction of the Court was invoked by a person without legal capacity to do so and that rendered the suit a non-starter. Consequently, I strike it out with costs to the Respondent. DATED, SIGNED AND DELIVERED VIRTUALLY IN OPEN COURT AT NAIROBI THIS 28TH DAY OF SEPTEMBER, 2026. ONESMUS MAKAU JUDGE Appearance: Ombati for Claimant Mbithe for Respondent https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2587/eng@2026-09-28 5

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