Shankar Electronics Limited v Amalgamated Union of Kenya Metal Workers (Civil Appeal E123 of 2025) [2026] KEELRC 2052 (KLR) (16 July 2026) (Judgment)

REPUBLIC OF KENYA IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT MOMBASA CIVIL APPEAL NO. E123 OF 2025 SHANKAR ELECTRONICS LIMITED .................APPELLANT VERSUS AMALGAMATED UNION OF KENYA METAL WORKERS ......................................... RESPONDENT ***(Being an appeal from the judgment and decree of Hon. Sogomo (SRM) delivered on 20th June 2025 at the Chief Magistrate's Court at Mombasa in MCCELRC Cause No. E227 of 2023 - Amalgamated Union of Kenya Metal Workers v Shankar Electronics Limited****)* J U D G M E N T **A. INTRODUCTION** 1. This is an appeal against the judgment and decree of the Chief Magistrate's Court at Mombasa (Hon. Sogomo, SRM) delivered on 20th June 2025 in MCCELRC Cause No. E227 of 2023, in which the trial court entered judgment substantially in favour of the Claimant, Amalgamated Union of Kenya Metal Workers, the Respondent in this appeal, against Shankar Electronics Limited, the Appellant, a limited liability company carrying on the business of sale, supply and servicing of electronic goods and air-conditioning equipment within Mombasa County. 2. The dispute has its genesis in a Collective Bargaining Agreement executed between the parties on 30th September 2019 ("the CBA"), and in salary reductions unilaterally effected by the Appellant upon its unionisable staff with effect from November 2020, ostensibly on account of the adverse economic effects of the Covid-19 pandemic. The matter raises, with some sharpness, the perennial tension between an employer's genuine commercial distress and the sanctity of collectively bargained and statutorily protected terms of employment. **B. THE PROCEEDINGS BEFORE THE TRIAL COURT** 1. By a Statement of Claim dated 24th April 2023, later amended on 16th May 2025, the Respondent, as Claimant before the trial court, sought the following reliefs against the Appellant: *(i) An order compelling the Appellant to fully comply with the CBA signed on 30th September 2019;* *(ii) A declaration that the deductions on the Respondent's members' salaries were unlawful;* *(iii) An order compelling the Appellant to pay the wrongfully deducted/withheld salaries, computed at Kshs. 4,337,971, together with accrued interest of Kshs. 2,602,782.60;* *(iv) An order that the deductions in (iii) above continue to be repaid from May 2023 at the rate of Kshs. 147,478.45 per month, with interest at 14% per annum until payment in full;* *(v) A permanent injunction restraining further deductions;* *(vi) General damages for the hardship occasioned to the Respondent's members;* *(vii) Exemplary damages;* *(viii) Such other relief as the court deemed just;* *(ix) Interest at court rates on (iii) and (iv); and* *(x) Costs of the suit.* 1. The Respondent pleaded, in summary, that the CBA obligated the Appellant to increase wages in two phases, by 6% in 2020 and a further 6% in 2021; that the Appellant complied for a brief period in early 2020 before, from November 2020, unilaterally reducing salaries below even the pre-CBA rates, a state of affairs that persisted to the date of filing suit, without the consent, involvement or agreement of the Respondent or its members. 2. The Appellant, in its Reply to Statement of Claim dated 1st September 2023, denied that the reductions were unlawful and pleaded, in the alternative, that it had genuinely engaged the Respondent through a series of letters and meetings between June and November 2020 concerning the need for pay cuts occasioned by the Covid-19 pandemic; that having received no definitive response, it treated the Respondent's silence as "consent/acquiescence" and proceeded to implement the reduction; and that, in any event, the Respondent was estopped from resiling from a position it had, by its conduct, accepted. 3. It is instructive, and indeed goes far in disposing of much of this appeal, that at paragraph 6.13 of its Reply, the Appellant candidly pleaded as follows: *"Regrettably and despite all these engagements, neither the claimant nor the employees ever reverted to the Respondent on proposals made. As a result and in an attempt to save the company's financial position and avert doom, the Respondent implemented a pay cut in November, 2020."* 1. This is, on any fair reading, an admission that the salary reduction of November 2020 was implemented without the Respondent's agreement, and in the face of proposals that had not been accepted. **C. THE EVIDENCE ON RECORD** 1. At the hearing, the Respondent called two witnesses, Ms Rose Omamo, its General Secretary, and Mr Maurice Ouma Ohanga, its Branch Secretary for Mombasa, who testified to the existence of the CBA, its non-implementation, and the arbitrary and unilateral nature of the impugned salary deductions. 2. The Appellant called a single witness, Mr Akram Sheikh, its Managing Director, who confirmed the existence and partial implementation of the CBA and narrated the sequence of correspondence and meetings between June and November 2020, culminating in the implementation of the pay cut in November 2020 "in an attempt to save the company's financial position and avert doom." 3. Central to the record are several items of correspondence which this Court must restate, as they bear directly and decisively on the merits of this appeal: ***“(a) By letter dated 15th June 2020, the Appellant informed the Respondent of a proposed graduated salary reduction of between 5% and 40%, stating that "all the employees will be informed of this decision and requested to accept" [emphasis added] - language which, on a plain reading, presupposes that the employees' acceptance was required and had, as at that date, not yet been obtained.*** ***(b) By letter dated 22nd June 2020, the Respondent, through its Branch Secretary, expressly declined the proposal, counter-proposing instead a reduction of working days to three or four days a week with pay only for days actually worked, and further protested that the Appellant had unilaterally issued new contracts to members "trying to force them to sign," adding pointedly: "You are behaving as if you don't understand the law that you have on the table."*** ***(c) Following a meeting on 29th June 2020, the parties agreed to recall the 15th June letter and to commence "active negotiations and discussions."*** ***(d) The Appellant thereafter shared its audited financial statements with the Respondent on or about 10th July 2020.*** ***(e) By letter dated 19th August 2020, the Appellant, having received no response, again requested the Respondent's permission to implement a pay cut of between 5% and 20%, to be "reviewed after six months."*** ***(f) The Appellant nonetheless proceeded to implement the cut in September 2020, prompting protest and a go-slow by the Respondent's members, which caused the Appellant to reverse the September implementation.*** ***(g) By two letters dated 24th August 2020, one addressed to the Respondent and the other to the County Labour Officer, Mombasa, the Appellant gave notice that, having failed to secure agreement, it would, with effect from 1st November 2020, "reduce its workforce by 60%."*** ***(h) By letter dated 26th August 2020, the Appellant confirmed implementation of a 5% to 20% pay cut upon its unionisable staff, attaching a computation schedule.*** ***(i) By letter dated 29th August 2020, the Respondent's General Secretary, Ms Rose Omamo, responded in the clearest terms: "That we are not a party to the above subject matter and we cannot look into the tabulations as done by yourselves, since parties have not discussed and mutually agreed on the same. Kindly share with us the Law(s) you are using to apply the subject matter."*** ***(j) By a handwritten letter dated 22nd September 2020, some twenty-six employees personally and collectively rejected implementation of any pay cut, insisting on receipt of their normal salaries and that negotiation on the subject be channelled through the Union.*** ***(k) The dispute was referred to the County Labour Officer, culminating in a meeting on 16th November 2020 and a further meeting with employees on 21st November 2020, at which the employees undertook to revert by 23rd November 2020, an undertaking that was never honoured.*** ***(l) The Appellant thereupon implemented the impugned pay cut with effect from the November 2020 payroll, a state of affairs that, on the pleadings and evidence, persisted for over two years to the date of filing of the suit, and indeed to the date of the trial court's judgment.*** **D. THE IMPUGNED JUDGMENT** 1. Upon considering the pleadings, evidence and submissions, the trial court, in its judgment delivered on 20th June 2025, found for the Respondent and entered judgment substantially as prayed, granting prayers (i) to (v), (ix) and (x) of the Amended Memorandum of Claim in the terms set out at paragraph 3 above. **E. THE APPEAL** 1. Aggrieved, the Appellant lodged a Memorandum of Appeal dated 30th June 2025, raising three grounds, namely, that the learned trial magistrate erred in law and in fact: ***(a) by failing to find that the Appellant sufficiently engaged the Respondent in relation to the pay cuts;*** ***(b) by failing to acknowledge the harsh prevailing economic times occasioned by the Covid-19 pandemic; and*** ***(c) by failing to find that the Respondent was estopped from claiming the pay cuts, having been engaged in negotiations by the Appellant.*** **F. THE RESPECTIVE SUBMISSIONS** ***(i) Submissions for the Appellant*** 1. Learned counsel for the Appellant, Messrs Kamami Njoroge & Co. Advocates, urged this Court to take judicial notice of the devastating effect of the Covid-19 pandemic on business, particularly on Mombasa's tourism-dependent economy, relying on the Supreme Court's observations in Haki Na Sheria Initiative v Inspector General of Police & 2 others; Kenya National Human Rights and Equality Commission (Interested Party) [2021] KESC 22 (KLR). Counsel submitted that the Appellant, whose core business of supplying and servicing hotel equipment was severely affected, had genuinely engaged the Respondent, shared its confidential audited accounts, and only implemented the pay cut after the Respondent's persistent silence, which silence, it was submitted, amounted to acquiescence and a waiver of any right to challenge the deductions. Counsel relied on 748 Air Services Limited v Theuri Munyi [2017] eKLR, Chairman, State Bank of India and another(s) v M.J. James (2021 INSC 732), Sita Steel Rolling Mills Limited v Jubilee Company Ltd [2007] eKLR, Serah Njeri Mwobi v John Kimani Njoroge [2013] eKLR, Ibrahim Mungara Mwangi v Francis Ndegwa Mwangi [2014] eKLR, Ben Murage Njogu v Ramani Warehouse Limited [2021] eKLR, and Kenya Union of Journalists v Standard Group [2024] KEELRC 1347 (KLR). Counsel urged that the appeal be allowed, the impugned judgment quashed, and the suit before the trial court dismissed. ***(ii) Submissions for the Respondent*** 1. Learned counsel for the Respondent, Messrs Edwin Yose & Co. Advocates, raised, as a threshold objection, the incompetence of the Record of Appeal, contending that it omits a certified copy of the decree and typed and certified proceedings of the trial court, contrary to Rule 15(1) and (2) of the Employment and Labour Relations Court (Procedure) Rules, and relying on Paul Kurenyi Leshuel v Ephantus Kariithi Mwangi & Another [2015] eKLR and Municipal Council of Kitale v Fedha (1983) eKLR, for the proposition that this omission is incurable and fatal to the appeal. 2. On the merits, and without prejudice to the foregoing objection, counsel submitted that the Appellant had, in its own pleadings, admitted every material fact set out in the Amended Memorandum of Claim, entitling the Respondent to judgment substantially on admission; that the Respondent had at all times objected to the pay cuts, both through the Union's letters of 22nd June 2020 and 29th August 2020, and through the members' own letter of 22nd September 2020; and that the deductions violated section 17(10) and (11) as read with section 10(5) of the Employment Act. Counsel relied on Mathenge v DLR Group Africa Limited (Cause E942 of 2021) [2024] KEELRC 960 (KLR). **G. ISSUES FOR DETERMINATION** 1. Arising from the pleadings, the record and the rival submissions, this Court identifies the following issues for determination: ***(a) whether the Record of Appeal is incompetent for want of a decree and certified proceedings, and if so, the effect thereof;*** ***(b) whether the trial court erred in failing to find that the Appellant sufficiently engaged the Respondent on the pay cuts;*** ***(c) whether the trial court erred in failing to acknowledge the effects of the Covid-19 pandemic;*** ***(d) whether the doctrine of estoppel, waiver or acquiescence avails the Appellant; and*** ***(e) what orders should issue.*** **H. ANALYSIS AND DETERMINATION** ***(i) The preliminary objection: competence of the Record of Appeal*** 1. This Court has anxiously considered the Respondent's threshold objection. Rule 15(1) and (2) of the Employment and Labour Relations Court (Procedure) Rules is indeed couched in mandatory terms, and it is trite, as was held in Municipal Council of Kitale v Fedha (1983) eKLR and reiterated in Paul Kurenyi Leshuel v Ephantus Kariithi Mwangi & Another [2015] eKLR, that an appellate court can generally only pronounce itself upon what has been formally and properly placed before it, including the decree appealed from. 2. This Court is nonetheless alive to the overriding objective enshrined in Section 3 of the Employment and Labour Relations Court Act and Rule 3 of the Employment and Labour Relations Court (Procedure) Rules, which enjoins this Court to facilitate the just, expeditious, proportionate and affordable resolution of disputes, and to the like duty under Article 159(2)(d) of the Constitution to administer justice without undue regard to procedural technicalities. The record before this Court, while lacking a formally extracted and certified decree and typed and certified proceedings, nonetheless contains the pleadings, the witness statements, the documentary exhibits and a copy of the judgment appealed from, and both parties have fully and ably argued the substance of the appeal without any demonstrated prejudice arising from the omission. 3. In these circumstances, and mindful that the omission complained of goes to form rather than to any matter that has occasioned a miscarriage of justice or deprived this Court of the material necessary to determine the appeal, this Court declines to strike out the appeal on this ground alone. This should not, however, be understood as a licence for laxity; counsel are reminded of their solemn obligation to comply strictly with Rule 15 of the Rules, and costs occasioned by any default may, in an appropriate case, be visited upon the defaulting party. This Court proceeds to determine the appeal on its merits. ***(ii) The sanctity of collective bargaining and the imperative of harmonious industrial relations*** 1. It is not in dispute, and indeed could not seriously be disputed on this record, that the parties are bound by a valid, subsisting Collective Bargaining Agreement executed on 30th September 2019 and effective from 1st January 2020. The Appellant's own witness, Mr. Akram Sheikh, conceded at trial to "the existence and implementation of the Collective Bargaining Agreement between the parties," an admission this Court accepts as conclusive of the question. 2. The place of collective bargaining in the architecture of Kenya's labour relations framework cannot be overstated. Article 41(5) of the Constitution guarantees to every trade union, employers' organisation and employer the right to engage in collective bargaining, while Article 41(2)(c) guarantees to every worker the right to form, join and participate in the activities of a trade union. The Labour Relations Act, 2007, at sections 59 to 66, gives legal effect to registered collective agreements, such agreements taking effect, upon registration, as terms incorporated into the individual contracts of employment of the affected employees. 3. This conclusion is reinforced by Kenya's international obligations, given domestic effect by Article 2(5) and (6) of the Constitution. Kenya is a party to the International Labour Organisation's Right to Organise and Collective Bargaining Convention, 1949 (No. 98) and the Protection of Wages Convention, 1949 (No. 95), both of which oblige member states to promote and protect voluntary collective bargaining machinery and to safeguard workers' entitlement to their earned wages. These international labour standards inform, and find domestic expression through, the constitutional and statutory framework already discussed, and reinforce rather than dilute the protections available to the Respondent's members. 4. A collective bargaining agreement is not a mere statement of aspiration; it is the product of a structured, often protracted process of negotiation between an employer and the recognised trade union representing its employees, and it exists precisely so that the terms and conditions of employment - chief among them remuneration - are not left to the unilateral whim of either party, but are settled through a transparent, accountable and mutually respected process. It is this process, and the mutual trust it engenders, that sustains industrial peace and a harmonious working relationship between an employer and a recognised trade union. Where an employer bypasses that process, whatever its motivation, it does violence not merely to the specific agreement in question, but to the entire edifice of collective bargaining upon which orderly industrial relations depend. 5. This Court holds, without hesitation, that at all material times the terms and conditions of employment of the Respondent's members fell to be governed by the stipulations of the CBA, and that any variation thereof - whether by way of increase or, as here, purported reduction - could only be effected through a negotiated process resulting in the agreement of the recognised trade union, or by operation of law. It was not open to the Appellant, however genuine its financial difficulties, to simply announce and thereafter implement a unilateral variation of remuneration terms that were the product of collective bargaining. An employer cannot afford to bypass the negotiation process, or the trade union that is the chosen representative of its employees, and unilaterally change the terms of employment. ***(iii) Statutory protection of wages*** 1. This conclusion finds firm anchorage in statute. Section 17(10) and (11) of the Employment Act, 2007 renders it an offence for an employer to wilfully fail to pay wages due to an employee, and prohibits an employer from limiting or attempting to limit an employee's right to dispose of his wages as he deems fit. Section 19 of the Act circumscribes, exhaustively, the limited circumstances in which an employer may lawfully make deductions from an employee's wages, none of which countenance a unilateral, unagreed reduction occasioned by the employer's own financial difficulties. Section 10(5) of the Act further frowns upon any attempt by an employer to alter the terms of a contract of employment, including terms as to remuneration, without the concurrence of the employee. Salaries and wages are, in short, statutorily protected under the Employment Act, and that protection is not suspended merely because an employer finds itself in financial difficulty. 2. This Court is fortified in this view by the reasoning of Manani J. in Mathenge v DLR Group Africa Limited (Cause E942 of 2021) [2024] KEELRC 960 (KLR), where, in materially similar circumstances involving a Covid-19-related salary reduction, the learned Judge held: ***"Thus the Respondent was not entitled to unilaterally withhold the Claimant's salary under the guise of stabilizing its business in response to the COVID pandemic. Since the Claimant did not signify his readiness to forfeit his withheld half pay... the Respondent was not entitled to consider the amount as forfeited by him... The above position does not just flow from the provisions of Part IV of the Employment Act. It is also supported by section 10(5) of the Act which frowns upon any attempts by the employer to alter the terms of an employee's contract, including those on remuneration, without the concurrence of the employee."*** 1. That reasoning applies with, if anything, even greater force to the present case. There, the Court was concerned with the unilateral variation of a single employee's individual contract. Here, the Court is concerned with the unilateral variation of remuneration terms fixed by a registered Collective Bargaining Agreement covering an entire unionised workforce - a context in which the requirement of consent operates at a heightened, collective level, such that the consent, if any, of individual employees, still less their mere silence, cannot substitute for the considered agreement of the recognised trade union acting through its constitutional and statutory organs. ***(iv) Ground (a): whether the Appellant sufficiently engaged the Respondent*** 1. The Appellant's first ground of appeal invites this Court to find that the trial magistrate erred in failing to find that it had "sufficiently engaged" the Respondent. This Court has scrutinised the correspondence at length and does not doubt that the Appellant made repeated efforts at engagement: letters were written, a meeting was held on 29th June 2020, accounts were shared, and further meetings were convened before the County Labour Officer in November 2020. 2. However, "engagement," without more, is not the legal threshold the Appellant must meet. The question is not whether the Appellant talked to the Respondent; it is whether the Respondent agreed to the variation of remuneration terms fixed by the CBA. On the Appellant's own pleaded case, it did not. Engagement that does not culminate in agreement cannot found a lawful variation of a collective agreement, any more than an offer that is never accepted can found a binding contract. Indeed, far from establishing agreement, the correspondence establishes the opposite: at every material juncture - 22nd June 2020, 29th August 2020, and 22nd September 2020 - the Respondent, whether through its officials or its members directly, expressly and unambiguously declined to accept the proposed reduction. 3. It is also telling that the Appellant's own letters betray its own understanding that agreement, not mere engagement, was required. The letter of 15th June 2020 spoke of employees being "requested to accept" the reduction. The letter of 19th August 2020 sought the Respondent's "permission" to implement the cut. An employer confident that it had already secured a binding variation, whether by agreement or by acquiescence, would have no occasion to keep requesting permission and acceptance months later. This Court finds that ground (a) of the appeal is without merit. ***(v) Ground (b): the Covid-19 pandemic*** 1. This Court readily acknowledges, as did the Supreme Court in Haki Na Sheria Initiative v Inspector General of Police & 2 others [2021] KESC 22 (KLR), that the Covid-19 pandemic was a public health emergency of unprecedented scale that severely disrupted economies, businesses and livelihoods across the globe, Kenya included, and Mombasa's tourism-dependent economy in particular. Nor does the Court doubt, on the audited accounts placed before the trial court, that the Appellant experienced genuine financial distress during the relevant period. 2. But acknowledging the reality and severity of the pandemic is an entirely different exercise from holding that the pandemic operated as a licence for the Appellant to disregard binding legal and contractual obligations. Hardship, however genuine, does not suspend the law, whether domestic or the international labour standards to which Kenya subscribes. The Employment Act does not contain, and this Court declines to read into it, a Covid-19 exception permitting employers to unilaterally vary CBA-protected remuneration. Nor did the Labour Relations Act, or the CBA itself, suspend the requirement of mutual agreement for variation during the pandemic period. If anything, the pandemic underscored the very reason such safeguards exist: to protect vulnerable workers from being made to bear, alone and without recourse, financial risks that are properly borne by the enterprise. 3. It is also material that the pay cuts here were not a short, sharply time-bound emergency measure confined to the acute phase of the pandemic. They commenced in November 2020 and, on the evidence, persisted for well over two years to the date of filing suit, and indeed remained in force as at the date of the trial court's judgment in June 2025 - long after the acute economic disruption of 2020 had abated and the economy, including the tourism sector upon which the Appellant's business depends, had substantially recovered. A measure ostensibly justified by an emergency cannot, without more, metamorphose into a permanent variation of contractual and statutory terms. 4. This Court finds, in any event, that the trial court cannot fairly be said to have "failed to acknowledge" the pandemic; the pandemic and its effects were squarely before the trial court on the pleadings and evidence. What the trial magistrate correctly declined to do was to treat the pandemic, without more, as a defence to what was, on the Appellant's own admissions, a unilateral and unagreed variation of protected wage terms. Ground (b) accordingly fails. ***(vi) Ground (c): the doctrine of estoppel*** 1. This ground merits the fullest consideration, both because it was the centrepiece of the Appellant's case and because it raises questions of some general importance in the industrial relations context. 2. Estoppel, in its various forms - estoppel by representation, promissory estoppel, and estoppel by acquiescence or conduct, of which waiver is a closely related but conceptually distinct doctrine - is founded on a unifying principle: that a party who has, by a clear and unequivocal representation or course of conduct, led another to believe that a particular state of affairs exists or will continue, and who has thereby induced that other party to act, or refrain from acting, to its detriment or in reliance on that belief, will not thereafter be permitted, in equity and good conscience, to resile from that position. See generally the classic formulation in Central London Property Trust Ltd v High Trees House Ltd [1947] KB 130, and the caution in Combe v Combe [1951] 2 KB 215 that estoppel operates as "a shield and not a sword," that is, as a defence founded upon an existing legal relationship, and not as an independent source of obligation capable of founding a claim. 3. Waiver, as was correctly stated in Serah Njeri Mwobi v John Kimani Njoroge [2013] eKLR, "operates to deny a party his right on the basis that he had accepted to forego the same rights having known of their existence," while estoppel "precludes a person from asserting something contrary to what is implied by a previous action or statement of that person." Both doctrines, whatever their precise taxonomy, share an indispensable common element: the representation or conduct relied upon must be clear, unequivocal, and such as to leave no reasonable doubt that the party has knowingly and voluntarily abandoned or waived the right in question. Mere silence, inaction or delay, without more, will rarely suffice. 4. This is precisely the point made, correctly in this Court's respectful view, in the very authority relied upon by the Appellant, Chairman, State Bank of India and another(s) v M.J. James (2021 INSC 732), where the Supreme Court of India held that "[e]ven indirect acquiescence implies almost active consent, which is not to be inferred by mere silence or inaction which is involved in laches." Properly read, that authority undermines rather than advances the Appellant's case, for what the record here discloses is not silence but active, repeated and unequivocal dissent. 5. On the facts of this case, the doctrine of estoppel simply cannot arise, for want of the very foundation upon which it must rest: a clear and unequivocal representation of acceptance. The Respondent responded to the Appellant's overtures not once but on at least three distinct occasions: by its counter-proposal of 22nd June 2020, proposing reduced working days rather than reduced pay, and pointedly rebuking the Appellant's attempt to have members sign new contracts unilaterally; by the unambiguous rejection contained in its letter of 29th August 2020, in which its General Secretary stated in terms that the Union was "not a party to the above subject matter" and demanded to know the legal basis for the Appellant's tabulations; and by the members' own handwritten letter of 22nd September 2020, collectively and individually rejecting the pay cut and insisting on payment of normal salaries pending proper negotiation through the Union. 6. It is difficult to conceive of conduct more inconsistent with acquiescence than a written demand to be shown the legal basis for a proposed deduction. The Appellant's characterisation, in its own pleadings, of the Respondent's position as "consent/acquiescence" is, with respect, not a finding grounded in the evidence but a unilateral and self-serving relabelling of what was, on the documents the Appellant itself placed before the trial court, sustained and vocal opposition. 7. The Appellant's reliance on 748 Air Services Limited v Theuri Munyi [2017] eKLR is, in this Court's view, misplaced. That case concerned an individual senior employee - indeed, the Financial Director in charge of payroll - who received a reduced salary for eight months without any protest whatsoever, and who was found, on the evidence, to have "understood and accepted" the cost-cutting measure, never once reporting the matter to a labour officer or to court. The facts here could scarcely be more different: this is not a case of a single senior insider's prolonged and unbroken silence, but of a recognised trade union representing rank-and-file workers who, far from remaining silent, engaged the Appellant in writing on no fewer than three occasions, escalated the matter to the County Labour Officer, and ultimately sought judicial redress, all within a period that does not begin to approach the unbroken and unexplained silence found dispositive in the Munyi case. 8. Nor can the reasoning in Kenya Union of Journalists v Standard Group [2024] KEELRC 1347 (KLR) avail the Appellant. As a decision of a court of concurrent jurisdiction, it is at most persuasive and is not binding on this Court. More fundamentally, it is distinguishable on its facts: even there, the Court expressly recorded that "no consultation seems to have taken place," a finding the Court nonetheless treated, in the peculiar and acute circumstances of April 2020, as an "exceptional" case warranting dismissal of the suit without an order for costs, rather than as authority for the general proposition that unilateral wage cuts are lawful. That decision did not purport to sanction, still less validate as a matter of general principle, the wholesale and indefinite unilateral variation of unionised wage terms, nor did it engage with the collective bargaining dimension present in this case. To the extent that it might be read as countenancing employer self-help in defiance of sections 17 and 19 of the Employment Act, this Court, with respect, declines to follow it, those statutory provisions being couched in unambiguous, mandatory language which no court may read down absent express legislative sanction. 9. The remaining authorities cited by the Appellant do not assist it further. Sita Steel Rolling Mills Limited v Jubilee Company Ltd [2007] eKLR requires, for a finding of waiver, "conduct... putting one off one's guard and leading one to believe that the other has waived his right" - the very opposite of what occurred here. Ben Murage Njogu v Ramani Warehouse Limited [2021] eKLR is authority only for the proposition that a party asserting Covid-19 hardship must adduce evidence of it, a threshold this Court accepts the Appellant met; it is not authority for the proposition that proof of hardship dispenses with the need for a lawful process - negotiation to a concluded agreement, or redundancy - before wages may be reduced. Ibrahim Mungara Mwangi v Francis Ndegwa Mwangi [2014] eKLR concerns the equitable doctrine of laches applicable to stale demands; it has no application to a case such as this, where each unlawful deduction constituted a fresh and continuing wrong giving rise to its own cause of action, and where the Respondent was, throughout the relevant period, actively pursuing extra-judicial avenues of redress, including recourse to the County Labour Officer, before resorting to litigation as, in its own words, "the last resort." A claimant who is actively, if unsuccessfully, pursuing alternative redress cannot fairly be said to have slept on its rights. 10. For completeness, this Court also observes that even had the Respondent remained entirely silent, which it did not, mere continued attendance at work and receipt of a reduced wage by workers who depend on that wage for their livelihood and that of their families cannot, without more, be equated to a free and voluntary waiver of a statutorily protected right. To hold otherwise would be to sanction the very mischief that sections 10(5), 17 and 19 of the Employment Act were enacted to forestall, and would place low-income unionised workers in the impossible position of having either to forgo their wages entirely by resigning, or to be taken, by the mere fact of continuing to work and be paid whatever the employer chooses to pay, to have waived their statutory and contractual entitlements. That cannot be the law, and this Court declines to so hold. 11. Ground (c) of the appeal accordingly fails. ***(vii) Lawful alternatives available to, but not pursued by, the Appellant*** 1. It bears emphasis that the Appellant was not without lawful recourse. If, as it contends, it held the genuine view that the Respondent's conduct - its perceived intransigence or failure to engage constructively - amounted to an unfair labour practice, Article 41(1) of the Constitution, which guarantees the right to fair labour practices in language broad enough to extend to "every person" and not merely to employees, together with Article 41(5) guaranteeing the right of every employer to engage in collective bargaining, afforded the Appellant an avenue to seek appropriate relief and directions from this Court. It did not do so. Rather than committing the illegality of a unilateral reduction of salary, the Appellant could, and should, have engaged the available legal redress mechanisms. 2. Equally, had the Appellant's financial circumstances been as dire as it contends, section 40 of the Employment Act provided a lawful, if regrettable, avenue: redundancy, with its attendant safeguards of notice to the Labour Office, fair and transparent selection criteria, and severance pay. It is notable that the Appellant's own letters of 24th August 2020 spoke of an intention to "reduce its workforce by 60%," language redolent of redundancy; yet no employee was in fact declared redundant, no statutory notice in the form section 40 requires was given to the Labour Office, and no severance was paid. What in fact occurred was neither a lawful variation of the CBA nor a lawful redundancy, but an unlawful hybrid: a unilateral, unagreed and indefinite reduction of wages, dressed in the language of negotiation but never in fact agreed. 3. An employer facing genuine financial distress is not without options under Kenyan labour law. What it may not do is bypass the recognised trade union and the negotiated collective bargaining process, and unilaterally impose a reduction in terms and conditions of employment that the law requires to be settled by agreement. ***(viii) Quantum*** 1. The Memorandum of Appeal does not challenge the quantum awarded by the trial court, confining itself to the three grounds addressed above, all of which go to liability rather than quantum. In the absence of any ground of appeal directed at the correctness of the sums awarded, and there being no manifest error apparent on the face of the record capable of being noticed suo motu, this Court declines to disturb the monetary awards made by the trial court. **I. DISPOSITION** 1. For the reasons set out above, this Court finds that: ***(a) the omissions in the Record of Appeal, while regrettable, do not warrant striking out the appeal, and the appeal has accordingly been considered on its merits;*** ***(b) the parties were at all material times bound by a valid and subsisting Collective Bargaining Agreement, variable only by a negotiated process resulting in the agreement of the Respondent, or by operation of law;*** ***(c) the salary reductions effected by the Appellant from November 2020 were unilateral, unagreed, and in breach of the CBA and of sections 10(5), 17(10) and (11) and 19 of the Employment Act;*** ***(d) the Covid-19 pandemic, while a real and acknowledged source of hardship, afforded the Appellant no licence to disregard its statutory, contractual and international labour law obligations, lawful alternatives - negotiation to a concluded agreement, recourse to this Court, or redundancy under section 40 of the Employment Act - being available and unused;*** ***(e) the doctrine of estoppel, waiver or acquiescence does not arise on this record, the Respondent having, through its officials and its members, repeatedly and unequivocally objected to the proposed pay cuts rather than having, by clear and unequivocal conduct, represented its acceptance thereof; and*** ***(f) the trial court did not err in any of the respects urged by the Appellant.*** 1. In the result, this appeal is found to be devoid of merit and is hereby dismissed in its entirety. The judgment and decree of the trial court delivered on 20th June 2025 in MCCELRC Cause No. E227 of 2023 are hereby upheld in full. 2. The Respondent having substantially succeeded, the costs of this appeal shall follow the event and are awarded to the Respondent. 3. It is so ordered. Dated, signed and delivered at Mombasa this 16th day of July 2026. **OCHARO KEBIRA** **JUDGE**