https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2037

Kenya Union of Domestic Hotels, Educational Institutions and Hospital Workers (KUDHEIHA) v Board of Management HGM Memorial Girls High School (Cause E047 of 2024) [2026] KEELRC 2037 (KLR) (17 July 2026) (Judgment) Neutral citation: [2026] KEELRC 2037 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Machakos Cause E047 of 2024 HS Wasilwa, J July 17, 2026 Between Kenya Union of Domestic Hotels, Educational Institutions and Hospital Workers (Kudheiha) Claimant and The Board of Management HGM Memorial Girls High School Respondent Judgment 1.The Claimant instituted this claim vide a Memorandum of Claim dated 21st November 2024 prays for: -1.The respondent be ordered to pay the severance pay.2.The respondent be ordered to pay 1-month redundancy notice to each grievant.3.The respondent be ordered to pay 9 months’ salary arrears to each grievant.4.Certificates of service to each grievant5.Costs of the SuitAs follows;1ST Grievant (Catherine Mumbua)i.Severance pay (at 15 days each year worked)23737 = 791 per day= 791 per day x (15 days 15 days x 35 years) = Ksh 41539730 daysii.one months’ notice;23737 x months = KshKsh23737iii.Unpaid salaries from May 2020 to January 2021;23737 x 9 months =Ksh 213632ND Grievant (Jane Mamu)i.severance pay21216 = 707 per day (1515 days x 13 years) = Ksh 137,90430 daysii.Notice for1 months21216 x 11months notice = Ksh 21216iii.Unpaid salary from May 2020 to January 2021 Claimant’s Case 2.The Claimant union's case avers that it is a registered trade union, and that the Respondent is a registered public school managed by a Board of Management. 3.The Claimant union avers that the 1st grievant, Catherine Mumbua Mutie, was employed by the Respondent on 26th September 1985, initially serving as an untrained teacher for ten years before being transferred by the Board of Management to the position of store keeper/caterer, a role she held for a further twenty-five years, bringing her total service to thirty-five years. 4.It is averred that the 1st grievant served in that capacity until she was terminated on grounds of redundancy on 31st December 2021, her last basic salary having been Kshs. 23,737, however, she was never paid her salary for the nine-month period between May 2020 and January 2021. 5.The Claimant union states that the Respondent deposited Kshs. 311,444.30 into her Sacco account on 10th January 2022 purportedly as gratuity, and contends that government guidelines entitle non-teaching staff to gratuity at the rate of one month's salary for each completed year of service upon retirement. 6.It is the Claimant union's case that the 1st grievant was declared redundant against her will notwithstanding that she had already attained the retirement age of 57 years, and that she ought to have been properly retired, a course more favourable to her than redundancy. 7.The Claimant union further avers that the Respondent neither engaged the 1st grievant nor notified her union representative before taking this decision, and that in doing so the Respondent disregarded her dignity and value as an employee by unilaterally and unfairly redundating her position. 8.With respect to the 2nd grievant, Jane Mamu, it is averred that she was employed as an accounts clerk vide letter dated 26th June 2008 and confirmed on 1st May 2008, and that she served diligently in that role for thirteen years until she was terminated through redundancy on 31st December 2021, her last basic pay having been Kshs. 21,216. 9.The Claimant union states that she similarly went unpaid for the nine months between May 2020 and January 2021, and that the Respondent deposited Kshs. 171,606 into her Sacco account on 10th January 2022. 10.It is contended that the Respondent failed to consult either the 2nd grievant or her union representative prior to the redundancy, and that the Respondent paid what it termed gratuity rather than severance pay, contrary to the conciliator's report, notwithstanding that termination was by way of redundancy. 11.The Claimant union avers that the sum deposited was not accompanied by any breakdown or statement showing how it was arrived at. 12.It is the Claimant union's case that the matter arose during the Covid-19 period when schools closed and workers were sent home without pay, and that the grievants were never paid their salaries for the nine months between May 2020 and January 2021 despite the government having disbursed funds for that purpose. 13.The Claimant union avers that the Respondent unilaterally rendered the grievants' positions redundant without prior notice to the union or consultation with the grievants, and thereafter calculated and deposited severance sums into their Sacco accounts (Winas Sacco) at amounts lower than those due under the negotiated formula agreed between the Ministry of Education and the Claimant union on redundancy. 14.It is the Claimant union’s case that the positions declared redundant in fact still exist, and that the Respondent refused to cooperate or negotiate an amicable resolution, citing non-visits to schools due to examinations without proposing an alternative venue, while maintaining that its tabulation and payment were final. 15.The Claimant union states that it reported the matter to the Ministry of Labour as required under the Labour Relations Act, and that the conciliator, in her report dated 9th October 2023, recorded that the conciliation meeting had failed to resolve the dispute, while also capturing issues raised by the Respondent as to union membership. 16.It further avers that the Respondent's severance calculations fell below the statutory threshold under the Employment Act of a minimum of fifteen days' pay for each year worked. 17.The Claimant union avers that the Respondent issued redundancy letters to the 1st and 2nd grievants indicating their last working day as 31st December 2021, and the union, vide a letter dated 6th December 2021, advised the Respondent of the grievants' entitlements under the collective agreement. 18.It is stated that on 17th February 2022 the Claimant union protested the Respondent's disregard of the union and the labour laws. In its response dated 9th March 2022, the Respondent asserted that it had complied with the Employment Act and that no further meeting was necessary, citing the examination period. 19.The Claimant union avers that it thereafter reported the matter to the Ministry pursuant to section 65(1) of the Labour Relations Act, thereafter, a conciliator was appointed on 28th April 2022, and a scheduled date of 29th October 2022 had to be rescheduled as it fell on a Saturday, before the appointed conciliator was transferred and a new conciliator appointed on 1st August 2023. 20.It is stated that the new conciliator convened meetings on 9th September 2023 and 26th October 2023. At the first meeting, the Respondent demanded proof that the grievants were union members, and upon the Claimant union furnishing such proof, the Respondent, vide a letter dated 19th October 2023 addressed to the conciliator, stated that the matter would be handled by the full Board. 21.The Claimant union avers that the Respondent, in a further letter dated 24th September 2024, indicated that the Board had met and deliberated on 2nd February 2024 and concluded that the two workers had been paid their benefits in full and that NSSF dues had been remitted throughout their employment. 22.It is the Claimant union’s case that the Respondent violated Article 41 of the Constitution, read together with section 40 of the Employment Act, which requires an employer to issue one month's notice to the union where the affected employee is a member. 23.It avers that the Employment Act stipulates a minimum of fifteen days' pay for each year worked as severance for redundancy, and that the Respondent forfeited the grievants' salaries for the period May 2020 to January 2021 despite disbursement of government funds, contrary to section 18(2)(b) of the Employment Act, 2007. 24.The Claimant union further avers that the Respondent breached section 10(3) of the Employment Act by having the Board of Management unilaterally sit, deliberate, and act in a manner that disregarded the grievants and their union without notification or consultation, and that the Respondent failed to issue itemized pay statements and statements of statutory deductions, thereby denying the grievants their right to know how the sums paid were arrived at, contrary to sections 20(1) and 21 of the Employment Act. Respondent’s Case 25.In opposition to the claim, the Respondent filed a Response to Memorandum of Claim dated 2nd April 2025. 26.The Respondent avers the 1st grievant was employed on 13th May 1985 as an untrained teacher for ten years before being re-designated as store keeper/caterer, a position she held for a further 25 years, bringing her total service to 35 years. 27.The Respondent avers that the 1st grievant did not work during the period May 2020 to January 2021, having been placed on unpaid leave on account of Covid-19 measures that kept students at home, with the result that no capitation was processed to enable payment of her salary, and that she was informed of these measures. 28.In the alternative, the Respondent avers that the non-payment of salary for that period constituted a continuing injury which ought to have been claimed within one year as prescribed under the Employment Act. 29.The Respondent reiterates that the 2nd grievant likewise did not work between May 2020 and January 2021 owing to the same Covid-19 measures, such that no capitation was processed to enable her payment, a fact within the employees' own knowledge that they were on unpaid leave. In the alternative, the Respondent avers that this non-payment was similarly a continuing injury that ought to have been claimed within one year under the Employment Act. 30.The Respondent avers that the grievants were paid severance pay upon being declared redundant on account of a reduction in student numbers following Covid-19, resulting in reduced capitation and the consequent need to reduce school expenditure and labour, and reiterates that the grievants were issued a one-month notice and paid all dues owing to them. 31.The Respondent avers that severance pay was calculated in the presence of the Claimant's representatives and the County Labour Officer, Machakos, and that the Claimant at no point opposed the calculations, which were made in accordance with the law. 32.The Respondent further avers that the severance pay calculations were done in accordance with the law and that the suit is an afterthought founded on malice, the grievants having already received the monies paid by the Respondent. 33.The Respondent avers that the sums claimed have already been paid and a certificate of service issued, and prays that the claim be dismissed. Evidence in Court 34.The Claimant witness, Catherine Mumbua Mutie, (CW1) adopted her witness statement dated 7th November 2024 as her evidence in chief and produced the Claimant’s documents dated even date as her exhibits. 35.During cross-examination, CW1 testified that the Respondent directed the staff to stay home during Covid as schools were closed. In September when Form fours reported back to work, staff were called back to work, however, she was not called back until January 2021. 36.CW1 testified that she reported to work and continued working but failed to receive her salary prompting her to inform the union. 37.She testified that she was not aware she was going to be declared redundant. 38.She further testified that there was indeed a Board meeting attended by the board members and a labour officer informing them they could be going home but she cannot remember the day it was held. 39.CW1 testified that during the meeting they were informed that the number of students had decreased due to Covid and the number of employees was high hence the need to let go of some. However, they were not informed which department had excess employees. 40.She testified that she received her termination letter on 25th November 2021 which informed her last working day would be 31st December 2021. At the time she was on leave and she insisted that this letter did not amount to notice 41.CW1 testified that she is not aware if the union has a recognition agreement with the school. 42.CW1 testified that she lived in a school house but she use to pay Kshs. 500 to the bursar to which she was given receipt, but she did not produce any before this court. 43.She testified that the school paid NSSF. 44.The Claimant’s second witness, Jane Mamu (CW2), adopted her witness statement dated 7th November 2024 as her evidence in chief and produced the Claimant’s documents dated even date as her exhibits. 45.On cross-examination, CW2 testified that when the schools were closed between April to December 2020, she did not receive any salary. She reported back in January 2021. 46.CW2 testified that she was not present during the board meeting and that she was only informed of the meeting and what was discussed when she returned. However, the records produced in court state that she was present. 47.The Respondent’s witness, Francisca Kingoo (RW1) stated that she has the Secretary to the Respondent and Principal of the school from 18th August 2025. She adopted her witness statement dated 25th November 2025 as her evidence in chief; and produced the Respondents list of documents dated 6th May 2025 as her exhibits. 48.During cross-examination, RW1 testified that she has no information whether the grievants were paid their salaries for May 2020 to January 2021. 49.She testified that the Respondent did not produce in court to show that the school did not receive any capitation as schools were closed due to Covid. 50.RW1 testified that the grievants were terminated on account of redundancy and were paid their terminal dues which was deposed in their accounts held by Winas Sacco. Claimant’s Submissions 51.The Claimant submitted on four issues: Whether the 1st grievant redundancy was warranted; Whether the redundancy process was procedural and lawful; Whether the 1st and the 2nd grievant pending salary arrears are justified; Whether the claim for salaries arrears was overtaken by events. 52.On the first issue, the Claimant submitted that the 1st grievant, Catherine Mumbua, worked for the Respondent for 35 years, from 1985 to 2022. At the time her position was declared redundant, she was 57 years of age of which she had reached retirement age whereby the terms of retirement would have been more favourable to her rather than redundancy as per section 26 (2) of Employment Act, of which it dictates that such favourable condition shall apply. 53.The Claimant union submitted that, cognizant of this, the Respondent captured her retirement calculations as gratuity while applying the severance pay formula in its tabulation. 54.The Claimant union submitted that the Ministry of Education circular Ref. No. S23/1 dated 10th January 2005 provides the applicable guidelines and formula for calculating service gratuity for non-teaching staff on retirement. It maintained that the Respondent, as a subordinate institution of the Ministry, is deemed to have known of the circular. 55.It was submitted that having denied the 1st grievant the chance to retire honourably, the Respondent went further and deliberately reduced ten years from the formula, applying only 25.8 years as the period worked, thereby short changing her by Kshs. 109,190. 56.The Claimant union submitted that a labour officer, who it argued had wrongly usurped the role of the union by actively consulting with the Respondent, had nonetheless advised the Respondent, in the words of the minutes relied upon, that "those who are near retirement age can be allowed to finishing their remaining period." 57.It was submitted that the 1st grievant would have been better placed had she been retired normally, in which case she would have earned Kshs. 830,795 for her thirty-five years of service, and that the Respondent instead chose to manipulate the severance pay formula at her expense. 58.On the second issue, the Claimant union submitted that the Respondent at all material times knew that the two grievants were members of the union, yet ignored their right of representation and failed to notify the union, contrary to section 40(1)(a) and (g) of the Employment Act, which the Claimant union submitted amounts to a denial of freedom of association and fair administrative action. 59.It was submitted that the Respondent did not give the union one month's notice despite this knowledge, and that while the labour office was to be notified of the redundancy, it was not to represent or assume the role of union officials by engaging in consultations on the union's behalf. 60.The Claimant union submitted that by disregarding the laid-down procedure, the Respondent denied the grievants their fundamental rights of association and fair administration, and the Respondent deliberately applied the wrong formula and rates in calculating severance pay. 61.In support, the Claimant union relied on the Court of Appeal decision in Kenya Airways Ltd v Aviation & Allied Workers Union Kenya & 3 others [2014] KECA 404 (KLR), citing the holding of Maraga JA that " …..no proper notice was given to the affected employees or their trade union; …… I must find, as I hereby do that, despite the fact that the redundancy itself was justified, the appellant’s retrenchment of 447 employees amounted to unfair termination of employment.……..Those payments would have sufficed if the appellant had complied with the rest of the provisions of Section 40(1). Having not done so, I find that the affected employees are entitled to damages as a remedy for the flouting by the appellant of the rest of the provisions of that section.” 62.On the third issue, the Claimant union submitted that the Respondent did not produce any signed attendance list or consent to the alleged unpaid leave, save for manufactured minutes, contrary to section 10(3) of the Employment Act. 63.It is the Claimant union’s submissions that the grievants' contract letters indicated fixed terms with monthly remuneration, and that the Respondent misled the Court in alleging that they did not work during the Covid-19 era, when in truth the grievants were not casuals and remained entitled to salary even while on leave. 64.It was submitted that a matter as critical as agreement to nine months of unpaid leave cannot be justified by a mere AOB entry in meeting minutes recording that members were happy with the meeting's achievements, absent any individual written consent. 65.The Claimant union further submitted that government directives during the Covid-19 period required a written agreement between employers and employees on how to navigate the pandemic, and that the Respondent produced none, yet the government had disbursed funds on 9th September 2020 before the principal allegedly convened a joint meeting on 19th September 2020 at which staff purportedly agreed to proceed on unpaid leave. 66.On the fourth issue, it was submitted that the Respondent took advantage of the Covid-19 period to marginalise and discriminate against the Claimant union's members by failing to pay them even after the government had disbursed funds specifically for non-teaching staff salaries. 67.The union submitted that the Respondent nonetheless found Kshs. 200,000 to donate to the widow of its chairperson barely two weeks after the funds were released. 68.It is the Claimant union’s submission that the board members misled the non-teaching staff in a meeting despite knowing that the salary funds had already been deposited in the school's account on 9th September 2020, thereby fraudulently concealing from the grievants that their salaries were available for payment. 69.The Claimant union submitted that the workers, misled into believing no funds had been disbursed, endured nine months without salary. It contends that it is neither customary nor expected of workers to demand salary each month where a good relationship subsists with the employer, that duty resting instead on the employer to honour its obligations; that, the Respondent's dependence on government capitation for payment of non-teaching staff being known, occasional delays are ordinarily met with patience by employees without need for demand, until the Respondent joined what the Claimant union termed the "covid millionaires" by exploiting the pandemic to shortchange its non-teaching staff. 70.It was submitted that the grievants, as union members, had mandated the union to protect their labour rights, including pursuit of claims for unpaid salaries, which the union did timeously by way of a petition filed on 4th August 2020, only three months after members stopped receiving pay, being Kenya Union of Domestic, Hotels, Educational Institutions and Hospital Workers v George Magoha, Cabinet Secretary for Ministry of Education, Science and Technology & 2 others; Kenya Secondary School Heads Association & 3 others (Interested Parties) [2021] KEELRC 935 (KLR). 71.The Claimant union submitted that in response to the petition, the Cabinet Secretary swore an affidavit confirming release of salaries for non-teaching staff, deposing that "That on 9/9/2020, the Ministry disbursed Kshs 1,808,680,000 to Secondary Schools to cater for Board of Management salaries from July, 2020 to December, 2021." It argued that from that point the salary arrears stood confirmed and were automatically transposed into outstanding unpaid salaries, such that the Respondent's reliance on limitation of time is without merit. 72.It is the Claimant union’s submission that the Respondent genuinely held such grounds, it ought to have raised them by way of a notice of preliminary objection. 73.The Claimant union submitted that the Respondent, being a public body, and this conduct having been replicated by several of its counterparts in the education sector, an affirmative decision by the Court would render justice not only to the grievants herein but to all non-teaching staff in Kenya who have faced similar circumstances. Respondent’s Submissions 74.The Respondent submitted that the issue for determination is whether the Claimant is entitled to the reliefs sought, and it proceeded to submit on each head of relief in turn. 75.The Respondent submitted that severance pay is a compensation package payable to an employee whose role has been declared redundant on account of restructuring, downsizing, abolition of office, or other legitimate needs of the employer. 76.It was submitted that Section 40(1) of the Employment Acts ets out the conditions under which such entitlement arises and how it is to be calculated. This provision sets out that an employer may not terminate on account of redundancy unless it has, among other things, notified the union and labour officer not less than one month prior to the intended date of termination where the employee is a unionised member, had due regard to seniority, skill, ability and reliability in selecting employees for redundancy, avoided disadvantaging an employee for union membership or non-membership, paid off accrued leave in cash, paid one month's notice or wages in lieu, and paid severance at not less than fifteen days' pay for each completed year of service. 77.It is the Respondent’s submission that it fulfilled all these statutory conditions, and that the Claimant had not proved that the grievants were not compensated severance pay; the grievants themselves having testified that they were informed of the redundancy in the presence of other employees and the labour officer. They further testified that they were granted a month's notice, and had one month's salary included in the benefits paid to them. 78.On the Claimant's allegation that it was not involved in the process, it was submitted that the Respondent was unaware that the grievants had joined the Claimant union, as they never availed any evidence to that effect and the Claimant had not signed any recognition agreement with the Respondent. 79.It is the Respondent’s submission that the Claimant did not avail any evidence that the grievant were part of their union prior to the redundancy procedure hence the respondents could not have known that the Claimant was a necessary member during the redundancy process. 80.On one month's salary redundancy notice, the Respondent submitted that it paid to the grievant the said one month salary despite having issued a notice of redundancy hence the said relief should not be granted by this Court. 81.On the claim for nine months' salary arrears, it was submitted that this head of claim falls within the category of a continuing injury or damage which ought to have been brought within one year of termination of employment, in strict adherence to Section 90 of the Employment Act. In support, the Respondent relied on Ondiek v Peter Gougus & Alice Chemirmir t/a Nakuru Teachers Training College [2022] KEELRC 1328 (KLR) , in which Nderitu J, in dismissing a prayer for leave allowance, held that leave allowance becomes due and payable at the end of each year worked, such that non-payment at the end of each such year is itself a continuing injury, and that claims for salary arrears and leave allowances founded on continuing injury or damage ought to be filed within twelve months of termination. 82.On certificates of service, it was submitted that the Respondent had prepared certificates of service for the grievants, but the grievants failed to collect them. 83.It is the Respondent’s submission that the Claimant having failed to demonstrate unfair termination, it is not entitled to the reliefs sought in the memorandum of claim, and the Respondent prayed that the claim be dismissed in its entirety with costs to the Respondent. 84.I have examined all the evidence and submissions of the parties herein. It is not contested that the greviants were employees of the respondents and served the respondents for 35 years and 13 years respectively. It is also not contested that the two (2) greviants were declared redundant during the Covid era and were paid kshs 311,44/- and kshs 171,606.40 as severance pay. 85.From the calculations produced in court when the respondents calculated the 1st greviants pay they used 25 years and they therefore underpaid her less 10 years which she is rightly entitled for. 86.It is also true that the redundancy was issued to the 2 greviants without any due process because both were served with termination of employment on account of redundancy letters signed on 25/11/21 informing them of a board decision of 13/11/21 and 25/11/21 declaring them redundant. The redundancy was issued without regard to the law as provided for under section 40 of the Employment Act 2007 which states as follows:(1)An employer shall not terminate a contract of service on account of redundancy unless the employer complies with the following conditions –a.where the employee is a member of a trade union, the employer notifies the union to which the employee is a member and the labour officer in charge of the area where the employee is employed of the reasons for, and the extent of, the intended redundancy not less than a month prior to the date of the intended date of termination on account of redundancy:(b)where an employee is not a member of a trade union, the employer notifies the employee personally in writing and the labour officer ;(c)the employer has, in the selection of employees to be declared redundant had due regard to seniority in time and to the skill, ability and reliability of each employee of the particular class of employees affected by the redundancy;(d)where there is in existence a collective agreement between an employer and a trade union setting out terminal benefits payable upon redundancy; the employer has not placed the employee at a disadvantage for being or not being a member of the trade union;(e)the employer has where leave is due to an employee who is declared redundant , paid off the leave in cash;(f)the employer has paid an employee declared redundant not less than one month’s notice or one month’s wages in lieu of notice; and(g)the employer has paid to an employee declared redundant severance pay at the rate of not less than fifteen days pay for each completed year of service. 87.It is evident that the greviant’s union was never informed of the redundancy and they had no chance to air their own position on the same or consult with the respondents as articulated in the Kenya Airways case (supra). 88.Having found as above, I find for the claimants and enter judgment for them and award them as follows:- 89.1st grievanta.10 years severance pay = 15 days salary for 10 years = 0.5x23737x10= Kshs 118,685/-.b.Unpaid salaries for May 2020 to January 2021 = 9 months = 213,633/-.Total = 332,318/-.2nd grievanta.Unpaid salary from May 2020 to January 2021 = 9 months = 21,216x9= Kshs 190,944/-.The amount is payable less statutory deductions and the respondents will pay costs of this suit plus interest at court rates with effect from the date of this judgment. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 17TH DAY OF JULY 2026.HELLEN WASILWAJUDGE