https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1918

REPUBLIC OF KENYA IN THE EMPLOYMENT & LABOUR RELATIONS COURT AT NAKURU ELRC PETITION NO. E013 OF 2025 (Before Hon. Lady Justice Anna Ngibuini Mwaure) YIAILE PARSALOI…………………………………...............… 1ST PETITIONER OLOSHOROI OLE LEINTOI……………….…................…...2ND PETITIONER MOSES MUSURPET MPOKE…………………...............…… 3RD PETITIONER SARUNI OLE TOLU…………………………………...............4TH PETITIONER MOSES SITOYA KERTELA………………………...............…. 5TH PETITIONER DENNIS PATIAT…………………………………...............… 6TH PETITIONER DAVID GITHUKU MWANGI………………….................… 7TH PETITIONER JEFFERSON SIMAI REIYIA…………………..…..............….. 8TH PETITIONER NKAISUNKUI OLE SIOLOLO…………...……...............…… 9TH PETITIONER WILSON LEDAMA KAPIO SEITAI……………................…..10TH PETITIONER PANIN OLE KANUNKA…………………………...............…11TH PETITIONER KUMOKISHU OLE TUPET………………………..................12TH PETITIONER PARMINIS OLE ROTIKEN………………………..................13TH PETITIONER SAMAIRE OLE NGOSHOSH……………………...................14TH PETITIONER ELRC PETITION NO E013 OF 2025 JUDGMENT PAGE 1 OF 29 SENJURA OLE MORIASO………………………...............…15TH PETITIONER ROBERT CHEPTARUS KIMWETICH…………….................16TH PETITIONER LETAYIO OLE NAISHIWUO………………………...............17TH PETITIONER LAMPEISHUA OLE KALEKU………………………...............18TH PETITIONER MOSES KISONGOL OLE NAIGUTA……………..............…19TH PETITIONER JACOB MUKWE KARAREI………………..…...............…...20TH PETITIONER BEETHOVEN MATUIYA KASURA………...............………..21ST PETITIONER NICHOLAS TAJEWUO NCHOE……………..….................22ND PETITIONER GEORGE GACHATHI NGANGA……………….................,23RD PETITIONER GEORGE POLOLET BOTOYO ………………….................24TH PETITIONER MILTON SAKAYIAN SOYIANTET………………................25TH PETITIONER SAMUEL NAIKUNI………………………………..................26TH PETITIONER ANDREW NTETE KALELIAN…………………….................27TH PETITIONER SAITOTI EDWIN KEIWUA……………………....................28TH PETITIONER FLORENCE KIANO PURRENKEI………………..................29TH PETITIONER TIAMPATI OLE LEINTOI………………………...................30TH PETITIONER TURERE OLE MPARIO…………………………...................31ST PETITIONER LAWRENCE SAMBU KOSGEY…………………..................32ND PETITIONER ELRC PETITION NO E013 OF 2025 JUDGMENT PAGE 2 OF 29 NYAMASYO GLADYS MWENDE………………..................33RD PETITIONER JOSEPH OBULU KHAYIMBA……………………................34TH PETITIONER KIMORUAI OLE NGABUAL……………………................. 35TH PETITIONER RAMPESHO OLE SADERA……………………….................36TH PETITIONER HENRY KANUNKA TAMPUL…………………...............….37TH PETITIONER DANIEL KOISA……………………………………................38TH PETITIONER JONATHAN SETEK OLE OLOLOSHOROI….....................39TH PETITIONER NESORE OLE KASOE……………………………..................40TH PETITIONER KANYUNTAI OLE MALETO……………………...................41ST PETITIONER LAPIT OLE SIOLOLO……………………………..................42ND PETITIONER GISA ALVIN TOPOIKA…………………………...................43RD PETITIONER AGESA DAVID…………………………………….................44TH PETITIONER KIPINGOT OLE KIOK…………………………................… 45TH PETITIONER GLADYS NDUNGE KIOKO…………………...............….....46TH PETITIONER TINKOI OLE SHUNKUR……………………...............….....47TH PETITIONER VINCENT KILELE OLODOKENYA…………...............….....48TH PETITIONER LETIYIA OLE MWALA…………………………....................49TH PETITIONER MUSEKA OLE NCHOE…………………………...................50TH PETITIONER ELRC PETITION NO E013 OF 2025 JUDGMENT PAGE 3 OF 29 STANLY OLOOMALI PAROSEI…………………...................51ST PETITIONER TAKEU OLE NAILOLE…………………………….................52ND PETITIONER MILANOI LUIZA SEUR…………………………...................53RD PETITIONER LEPERES ELIZABETH NAIKANAI………………...................54TH PETITIONER SIRUAINE OLE KIOK……………………………..................55TH PETITIONER FRED SANKAU SANKEI…………………………..................56TH PETITIONER MITCHELLE ITATO KUYO……………………....................57TH PETITIONER JOHNSON MPAIPAI LIARAM…………………..................58TH PETITIONER KERIASEK KILAINO MICHAEL…………………................. 59TH PETITIONER MATOI OLE SOKORDE………………………….................60TH PETITIONER JANETH CHEMUTAI KETIENYA…………………................61ST PETITIONER SOKORDE BENJAMIN…………………………...................62ND PETITIONER KARANDU OLE SANKALE………………………................ 63RD PETITIONER NCHOKO DOPOI………………………………................. 64TH PETITIONER NANCY SINTAMEI NAMPASO………………….................65TH PETITIONER LENTOYIAN OLE MAINAE……………………...................66TH PETITIONER MARK MWIRIGI KITHINJI……………………...................67TH PETITIONER ALEX KIMEU NZIOKA…………………………...................68TH PETITIONER ELRC PETITION NO E013 OF 2025 JUDGMENT PAGE 4 OF 29 JUSTUS KITILI MWANZWII……………………..................69TH PETITIONER AGNES KOSENCHA LEDIDE……………………..................70TH PETITIONER JOHANA KOTOINE MALETO…………………...................71ST PETITIONER CHARLES ORONKAI PAREYO…………………..................72ND PETITIONER NYUMU JOSEPH KIBUNJA……………………...................73RD PETITIONER MOSOTI OCHANDA………………………….....................74TH PETITIONER IBRAHIM LOBURA ENYAMAN………………....................75TH PETITIONER TITUS MBITHI MBANGULA………………….....................76TH PETITIONER YEGON NIXSON KIBII…………………………...................77TH PETITIONER HARRISON KOTOINE KIREU…………………...................78TH PETITIONER ROBERT PHILIP SIMIYU……………………..............…......79TH PETITIONER STEPHEN NYAGA KIARA………………...............…….......80TH PETITIONER DOMINIC OLEDIMA LOLGOSS………………....................81ST PETITIONER PATRIC SUNAATI MPUSIA……………………...................82ND PETITIONER CHRISTINE LANOI MARIAM…………………...................83RD PETITIONER LESOINE OLE LOET……………………………....................84TH PETITIONER CYNTHIA JEMIMA KUYA…………………….....................85TH PETITIONER BENSON LEMERIS NCHOKO…………………...................86TH PETITIONER ELRC PETITION NO E013 OF 2025 JUDGMENT PAGE 5 OF 29 PETER SAITOTI SAINGEU…………………….....................87TH PETITIONER OLEMUNKE ORAMAT OLEKINNE…………….................88TH PETITIONER NIMOH FATUMA MOHAMED…………………................89TH PETITIONER JOHN NTOIMASI NKUITO……………………..................90TH PETITIONER MIRIAM GATHONI NYAGAH…………………...................91ST PETITIONER VERSUS MGM MUTHU KEEKOROK MANAGEMENT LIMITED……………………….............. …….RESPONDENT JUDGMENT Introduction 1. The Petitioners instituted the suit vide a Petition dated 1st October 2025 seeking the following reliefs: a. A Declaration that the Respondent’s refusal to issue written contracts of employment for a period exceeding four (4) years is an unlawful and continuous violation of section 10 of the Employment Act, 2007, and Article 41 of the Constitution b. A mandatory injunction compelling the Respondent to forthwith and, in any event within seven (7) days of the Honourable Court’s order, ELRC PETITION NO E013 OF 2025 JUDGMENT PAGE 6 OF 29 issue comprehensive written contracts of employment to all Petitioners, backdated to the date of their commencement of employment under the Respondent’s management. c. A declaration that the purported redundancy enumerated in the notice dated 9th September 2025 is malicious, retaliatory, unlawful, null and void, and constitutes an unfair labour practice. d. A permanent injunction restraining the Respondent, whether by itself, its agents, or servants, from closing the lodge for the stated renovation purpose, or declaring the Petitioners redundant, until all statutory and constitutional requirements, including the issuance of contracts and the conclusion of the CBA, are fully met. e. A mandatory injunction compelling the Respondent to forthwith enter into sincere conciliation and negotiation with the KUDHEIHA workers union for the purpose of concluding the Collective Bargaining Agreement(CBA) within a period stipulated by the court. f. A declaration that the Petitioners are entitled to the full protection of their terms and conditions of service as if the CBA was in force and the contracts were issued from the date of takeover. g. Cost of this Petition and interest thereon. ELRC PETITION NO E013 OF 2025 JUDGMENT PAGE 7 OF 29 h. Any other relief that this Honourable Court may deem fit and just to grant. Petitioners’ case 2. The Petitioners aver that for more than four years, the Respondent has unlawfully failed to issue written employment contracts, contrary to sections 9 and 10 of the Employment Act, 2007, thereby infringing their constitutional right to fair labour practices under Article 41 of the Constitution. 3. Further, the Petitioners aver that the Respondent has declined to engage in collective bargaining with the Petitioners’ union, KUDHEIHA Workers, and has employed threats of redundancy and closure as a means to frustrate negotiations, constituting an unfair labour practice within the meaning of the Labour Relations Act, 2007. 4. The Petitioners contend that the redundancy notice dated 9th September 2025, purportedly issued to facilitate renovations, was retaliatory and issued in bad faith following their demands for contracts and a Collective Bargaining Agreement. 5. The Petitioners further aver that the proposed closure does not meet the statutory threshold for ELRC PETITION NO E013 OF 2025 JUDGMENT PAGE 8 OF 29 redundancy under Section 40 of the Employment Act, as it entails only a temporary cessation of operations. 6. Moreover, the Petitioners aver that the Respondent, being a tenant of the premises leased from the Narok County Government, has failed to obtain the requisite written consent and Environmental Impact Assessment licence from NEMA for the alleged refurbishment. 7. Consequently, the Petitioners assert that the Respondent’s actions are speculative, malicious, and amount to an abuse of redundancy provisions and a grave unfair labour practice warranting the Court’s intervention. Respondent’s replying affidavit 8. In opposition to the Petition, the Respondent filed a replying affidavit sworn by Mihail Mihaylov, the Respondent’s Manager, dated 27th February 2026. 9. The Respondent avers that its takeover of Keekorok Lodge in 2022 was accompanied by an obligation to renovate and modernize the facility, which had suffered decades of neglect and financial decline. Approval for renovations was duly obtained from the Narok County Government in April 2023, with conditions requiring ELRC PETITION NO E013 OF 2025 JUDGMENT PAGE 9 OF 29 commencement within 36 months and completion within five years. 10. The Respondent avers that the renovations are commercially necessary to restore competitiveness and profitability, citing audited financial statements for 2023 and 2024 showing escalating costs and a catastrophic revenue drop. 11. The Respondent denies that the redundancy notice of 9th September 2025 was retaliatory, asserting instead that closure for 18 to 24 months is unavoidable for safety and operational reasons during construction. 12. The Respondent further avers that employees resisted closure through strikes and unlawful actions, forcing temporary suspension of renovations, but minutes of meetings confirm staff were aware closure was inevitable. 13. On employment contracts, the Respondent argues that the staff were engaged on renewable annual terms pending CBA negotiations with KUDHEIHA, making individual contracts impractical. ELRC PETITION NO E013 OF 2025 JUDGMENT PAGE 10 OF 29 14.The Respondent maintains that it has engaged in collective bargaining in good faith, only resisting unsustainable proposals, and that delays arose from the need for realistic terms. 15. The Respondent emphasizes that redundancy consultations were attempted repeatedly, including through the Labour Office, but Petitioners refused to participate. 16. Ultimately, the Respondent concludes that the Petition is based on misrepresentations, that the Respondent has acted lawfully and in good faith, and urges the court to dismiss the Petition with costs. Petitioners’ supplementary affidavit 17. The Petitioners filed a supplementary affidavit sworn by Wilson Ledama Kapio Setai, the 10th Petitioner, dated 11th March 2026. 18.The Petitioners reiterate that they are long-serving employees of the Respondent retained under the Respondent’s management since 2022, yet have been denied written contracts in contravention of sections 9 and 10 of the Employment Act. ELRC PETITION NO E013 OF 2025 JUDGMENT PAGE 11 OF 29 19. The Petitioners emphasize that the Respondent’s reliance on expired contracts and alleged year-to-year terms is misleading, as no lawful contracts were ever issued. The Petitioners further aver discriminatory treatment, noting that some employees were granted contracts while others, including the Petitioners, were not, contrary to Article 27 of the Constitution and section 5 of the Employment Act. 20. The Petitioners underscore that the Respondent frustrated the CBA negotiations despite executing a Recognition Agreement under section 54 of the Labour Relations Act, prompting the Union to report disputes to the Ministry of Labour, which appointed conciliators. 21. The Petitioners argue that threats of closure and redundancy, including the notice of 9th September 2025, are retaliatory and not genuine, especially since the Respondent’s own contractor proposed phased renovations that would allow operations to continue. 22. The Petitioners also challenge the authenticity of the Respondent’s annexures, including photographs ELRC PETITION NO E013 OF 2025 JUDGMENT PAGE 12 OF 29 lacking timestamps and letters without official stamps, which they term misrepresentations. 23. Ultimately, the Petitioners urge this Honourable Court to find that the Respondent’s actions amount to unfair labour practices, discrimination, and bad faith, and to uphold the Petition dated 1st October 2025 with appropriate reliefs. 24. Parties canvassed the petition by way of written submissions. Petitioners’ submissions 25. The Petitioners submitted that the statutory framework under sections 9 and 10 of the Employment Act, 2007 imposes a clear and mandatory obligation upon employers to issue written contracts of service within two months of commencement of employment. Section 9 stipulates that any contract exceeding three months must be reduced into writing, while section 10 prescribes the particulars to be included therein. The repeated use of the term “shall” in both provisions denotes a command, leaving no room for discretion. In Awino v Masinde Muliro University of Science and Technology & another [2026] KEELRC 123 ELRC PETITION NO E013 OF 2025 JUDGMENT PAGE 13 OF 29 (KLR), the court held that the use of “shall” in statutory provisions leaves no latitude for alternative recourse. Similarly, in Kenya Union of Commercial Food and Allied Workers v Meru North Farmers Sacco Limited [2014] KEELRC 813 (KLR), the court emphasized that failure to comply with mandatory provisions renders the process unfair. The Court of Appeal in Registered Trustees of the Presbyterian Church of East Africa & another v Ruth Gathoni Ngotho-Kariuki [2017] KECA 194 (KLR) further underscored the centrality of written contracts in defining rights and obligations in employment relationships. 26. The Petitioners argued that the Respondent’s admission that the Petitioners have worked for several years without written contracts constitutes a continuing statutory violation. Such failure undermines clarity, fairness, and the protection of employees’ rights, and cannot be excused. The Respondent’s conduct therefore amounts to a breach of mandatory statutory duty and an infringement of the Petitioners’ constitutional right to fair labour practices. ELRC PETITION NO E013 OF 2025 JUDGMENT PAGE 14 OF 29 27.The Petitioners contend that the Respondent’s conduct amounts to unlawful discrimination and violation of constitutional and international labour protections. The Petitioners relied on section 5 of the Employment Act, which prohibits discrimination in recruitment, training, promotion, terms and conditions of employment, and termination, noting that the Respondent admitted to issuing contracts to some employees while denying the same to others. The Court of Appeal in Barclays Bank of Kenya Ltd & another v Gladys Muthoni & 20 others [2018] KECA 718 (KLR) affirmed that differential treatment of employees performing similar work without objective justification constitutes unlawful discrimination. Further, under Article 2(6) of the Constitution, international treaties ratified by Kenya form part of domestic law. The Petitioners invoke ILO Convention No. 87 on freedom of association, ILO Convention No. 98 on protection of collective bargaining rights, and ILO Recommendation No. 198 on protection against disguised employment relationships, arguing that the Respondent frustrated CBA negotiations, retaliated against union activity ELRC PETITION NO E013 OF 2025 JUDGMENT PAGE 15 OF 29 with redundancy threats, and failed to formalize employment relationships through written contracts. The Petitioner also relied on Wanjiku & another v Attorney General & Another; Muna & Another [2012] KEHC 5410 (KLR), where the court affirmed that international human rights instruments ratified by Kenya are enforceable in interpreting the Bill of Rights. 28.The Petitioners submitted that the Respondent’s own audited financial statements undermine its claim of financial distress and necessity for redundancy. The accounts for 2023 reflect an operating profit before tax of Kshs.8,692,919/=, net profit after tax of Kshs.6,085,043/=, revenue exceeding Kshs.576 Million, gross profit of Kshs.44 Million, staff costs of only Kshs.24.8 Million, property and equipment valued at Kshs.1.39 Billion, and cash reserves of approximately Kshs.50 Million. These figures demonstrate financial viability and depict restructuring rather than collapse. Against this backdrop, the purported redundancy is procedurally defective and substantively unjustified. ELRC PETITION NO E013 OF 2025 JUDGMENT PAGE 16 OF 29 29.The Petitioners relied on section 40(1)(a) of the Employment Act requires employers to notify both the trade union and the labour officer at least one month prior to redundancy, yet the Respondent addressed its notice to an unspecified “union representative” instead of the Secretary General, thereby undermining meaningful consultation. The Court of Appeal in Kenya Airways Limited V Aviation & Allied Workers Union Kenya & 3 others [2014] KECA 403 (KLR) and Thomas De La Rue (K) Ltd V Omutelema [2013] KECA 492 (KLR) emphasized that redundancy must be based on genuine operational necessity. Justice Maraga JA, in Barclays Bank of Kenya Ltd & another v Gladys Muthoni & 20 others(supra), reiterated that consultation must be real and not cosmetic, citing the English case of Cammish v Parliamentary Service (1996) 1 ERNZ 404 in support of that proposition. 30. In light of the Respondent’s financial records and procedural lapses, the Petitioners contend that the redundancy process was tainted by bad faith, retaliatory in nature, and inconsistent with the constitutional guarantee of fair labour practices under ELRC PETITION NO E013 OF 2025 JUDGMENT PAGE 17 OF 29 Article 41. The Petitioners therefore urge this Honourable Court to declare the intended redundancy unlawful. 31. The Petitioners submitted that the Respondent’s actions reveal a deliberate pattern of bad faith retaining employees without written contracts in breach of sections 9 and 10 of the Employment Act, selectively issuing contracts, frustrating CBA negotiations under section 54 of the Labour Relations Act, and invoking alleged financial hardship to justify redundancy despite financial records showing viability. This conduct violates the constitutional guarantees of equality and fair labour practices under Articles 27 and 41 of the Constitution. As affirmed in Kenya Airways Ltd v Aviation & Allied Workers Union Kenya & 3 Others(supra), labour rights must be interpreted broadly to protect workers from arbitrary treatment. The redundancy process, procedurally defective and substantively unjustified, is tainted by bad faith and retaliation. The Petitioners therefore urge this Honourable Court to declare the redundancy unlawful and grant the reliefs sought with costs. ELRC PETITION NO E013 OF 2025 JUDGMENT PAGE 18 OF 29 Respondent’s submissions 32.The Respondent identified four key issues including whether the absence of written contracts amounts to unfair labour practice, whether its stance in CBA negotiations was unlawful, whether the intended closure and redundancies are justified and procedurally fair, and whether the Petitioners are entitled to reliefs sought. 33. First, the Respondent submitted that the absence of written contracts does not amount to unfair labour practice, since the Petitioners were engaged on annual renewable terms which qualify as valid contracts under section 2 of the Employment Act, 2007. The Respondent relied on the cases of Krystalline Salt Limited v Mwakele & 67 others [2017] KECA 717 (KLR), Kenya Airways Limited v Flora [2013] KECA 545 (KLR), and Ali Abdi Mohamed v Kenya Shell & Company Limited [2017] KECA 590 (KLR) to affirm that contracts may be inferred from conduct. 34.Second, on discrimination, the Respondent maintain that only one employee retained a written contract due to transfer from another branch, which was ELRC PETITION NO E013 OF 2025 JUDGMENT PAGE 19 OF 29 objectively justified, relying on Gichuru v Package Insurance Brokers Ltd [2021] KESC 12 (KLR) and section 7(4) of the National Cohesion and Integration Act, 2008 to stress that not every difference in treatment amounts to unlawful discrimination. 35.Third, regarding collective bargaining, the Respondent insist that they engaged KUDHEIHA in good faith, resisting only unsustainable proposals, and cited the case of Kenya Quarry and Workers Union v Mineral Enterprises Limited [2023] KEELRC 681 (KLR) to emphasize the voluntary nature of CBAs. 36. Finally, on redundancy, the Respondent submitted that closure for 18 to 24 months is necessitated by genuine operational requirements, escalating costs, and deteriorating infrastructure, invoking section 40 of the Employment Act, 2007, Kenya Plantation And Agricultural Workers Union V James Finlays (K) Limited [2013] KEELRC 406 (KLR), Kenya Airways Ltd v Aviation & Allied Workers Union Kenya & 3 Others(supra), and Alfred Nyungu Kimungui V Bomas Of Kenya ELRC PETITION NO E013 OF 2025 JUDGMENT PAGE 20 OF 29 [2013] KEELRC 235 (KLR) to affirm redundancy as a lawful managerial prerogative when substantively justified and procedurally fair. 37. On this basis, the Respondent urges the Court to dismiss the Petition with costs, asserting that no violation of Articles 27 and 41 of the Constitution, the Employment Act, or the Labour Relations Act has been established. Analysis and determination 38. The court has considered the pleadings herein together with the rival submissions by both parties; the issues for determination are as follows: a. Whether the Petitioners were issued with written contracts and whether they were renewable. b. Whether the Respondent was discriminatory towards the Petitioners c. Whether the Respondent engaged KUDHEIHA regarding the closure of the lodge. d. Whether the Respondent followed the due process of redundancy. e. Who should bear the costs of the petition. ELRC PETITION NO E013 OF 2025 JUDGMENT PAGE 21 OF 29 39. The Employment Act defines a contract of service as follows: “an agreement, whether oral or in writing, and whether expressed or implied, to employ or to serve as an employee for a period of time, and includes a contract of apprenticeship and indentured learnership but does not include a foreign contract of service to which Part XI of this Act applies.” 40. Sections 9 and 10 of the Employment Act impose a mandatory duty on employers to issue written contracts where employment exceeds three months. Section 9 requires that such contracts be reduced into writing, consented to by the employee, and explained in a language they understand if illiterate. Section 10 obliges employers to issue the written contract within two months of commencement, setting out key particulars such as the employee’s identity, job description, commencement date, duration, place and hours of work, remuneration, benefits, leave entitlements, notice periods, pensions, and collective agreements. Employers must also revise contracts when terms change, retain records for five years after ELRC PETITION NO E013 OF 2025 JUDGMENT PAGE 22 OF 29 termination, and in legal proceedings, failure to produce a written contract shifts the burden of proof to the employer. Together, these provisions underscore that written contracts are a binding legal duty designed to ensure clarity, fairness, and protection of employees’ rights. 41. The Petitioners assert that the Respondent failed to issue written contracts despite serving beyond the statutory threshold of three months. The Respondent contends that the Petitioners were engaged on renewable annual terms pending conclusion of CBA negotiations with KUDHEIHA, making individual contracts impractical. The Court notes, however, that the Respondent, upon takeover, acknowledged the Petitioners’ employment and indicated it would review their terms. In line with Sections 10 and 74 of the Employment Act, the Respondent was under a mandatory duty to issue written contracts and maintain employment records, which it failed to discharge. 42. On discrimination, the court relies on section 5 of the Employment Act, which prohibits direct or indirect discrimination in all aspects of employment. The ELRC PETITION NO E013 OF 2025 JUDGMENT PAGE 23 OF 29 Petitioners did not discharge the evidential burden under sections 107, 108, and 109 of the Evidence Act, to demonstrate the allegation of discrimination. In an allegation of discrimination court are emphatic that one alleging discrimination must prove the same. In the case of PEJETA RANCHING LIMITED -VS DAVID WANJAU MUHORO (2017) eKLR the court approved that not every difference in treatment amounts to discrimination. The employee must first demonstrate facts suggesting discriminatory treatment before the employer is called upon to justify its action. 43. In the case of BARCLAYS BANK OF KENYA -VS- GLADYS MUTHONI & 20 OTHERS (2018) eKLR the Court of Appeal discussed burden of proof on discrimination. The court stated that an employee must first establish prima facie case after which the employer must justify the differential treatment. 44. The Petitioner claimed some employees were given letters of contracts but there is no evidential proof of whom they are and how discrimination is deciphered therein. ELRC PETITION NO E013 OF 2025 JUDGMENT PAGE 24 OF 29 Discrimination cannot be mere perception but must be proved. The court does not find proof of discrimination by the Respondent from the evidence presented herein. 45. The Petitioners have made a prayer for finalising on the Collective Bargaining Agreement between KUDHEIHA and the Respondent. There is documentary evidence that demonstrates that the Respondent engaged KUDHEIHA and the Ministry of Labour when disputes arose over recognition and negotiation of the CBA. The court is satisfied that the Respondent attempted to participate in the process of negotiating with the union although terms were not all agreed. 46. On redundancy, Section 40(1) of the Employment Act prescribes strict procedural safeguards, including notice to the union and labour officer, fair selection criteria, payment of accrued leave, notice or wages in lieu, and severance pay. In Kenya Airways Ltd v Aviation & Allied Workers Union Kenya & 3 Others(Supra) and Thomas De La Rue (K) Ltd v Omutelema(Supra) emphasises that redundancy must be grounded on genuine operational necessity. ELRC PETITION NO E013 OF 2025 JUDGMENT PAGE 25 OF 29 47. The Respondents state they require to renovate their Lodge to make the same more competitive in the market. The employer cannot be stopped by court from making commercial or operational decisions. Indeed, in KENYA AIRWAYS LIMITED -VS- AVIATION & ALLIED WORKERS UNION KENYA & THREE OTHERS (2019) eKLR the Supreme Court held that: - “Court should not substitute their own views for those of an employer on commercial or operational decisions. The court’s role is to determine whether the redundancy was lawful, genuine, and procedurally fair and not whether employer made a sound business decision,” 48. The renovation plan by the Respondent cannot be stopped by the court and such a decision would frankly NOT be in the jurisdiction or purview of the court. The court’s mandate is to ensure the law is adhered to. 49. The Respondent must make a decisive decision on the way forward. If they are to proceed with the business as it is, they must give contracts to their ELRC PETITION NO E013 OF 2025 JUDGMENT PAGE 26 OF 29 employees. BUT if they must refurbish their Lodges they must follow the law as provided in Section 40 of the Employment Act and declare their employees redundant and give them their rightful dues as provided by the law. 50. Other than that, looking at the pleadings and the submissions of the Parties, the prayers being sought by the Petitioners cannot be granted as it would be interfering with the operational and commercial decisions of the Respondents. 51. Having said so, the Petitioners prayers cannot be allowed as prayed but clearly the court has given clear guidance on the way forward. 52. Under those circumstances, each party will meet the costs of the Petition. Orders accordingly. Dated, Signed and Delivered virtually at Nakuru this 3rd Day of July, 2026. ANNA NGIBUINI MWAURE JUDGE ELRC PETITION NO E013 OF 2025 JUDGMENT PAGE 27 OF 29 ORDER In view of the declaration of measures restricting Court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules, which requires that all judgments and rulings be pronounced in open Court. In permitting this course, this Court has been guided by Article 159(2)(d) of the Constitution which requires the Court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 1B of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) which impose on this Court the duty of the Court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes. A signed copy will be availed to each party upon payment of Court fees. ELRC PETITION NO E013 OF 2025 JUDGMENT PAGE 28 OF 29 ANNA NGIBUINI MWAURE JUDGE ELRC PETITION NO E013 OF 2025 JUDGMENT PAGE 29 OF 29