National Social Security Fund v Peter & 47 others (Civil Appeal E020 of 2021) [2023] KECA 804 (KLR)
The bottom line
#Kenya's Court of Appeal threw out 48 employees' claims against NSSF, ruling that employees must first prove discrimination before the burden shifts to the employer.
What this practically means
#Executive summary
#Key legal issues
#Whether the respondents' claim was time-barred under Section 90 of the Employment Act
The appeal on this ground could not be entertained because the trial court had already determined the issue in its ruling of 15th May 2018, which was not appealed or reviewed; the court was functus officio and the cut-off date of 30th April 2014 stood.
The trial court had addressed the time-bar issue in a ruling of 15th May 2018 which was not the subject of the appeal. A court cannot sit on appeal on its own ruling. The trial judge was functus officio unless that ruling was challenged by review or appeal. Since no appeal was preferred against the ruling, the court proceeded on the basis that the cut-off date for the claims remained 30th April 2014.
Whether the PwC and Bwondara Committee reports were binding on the appellant's Board
Only the PwC Report, which the Board approved and adopted, formed part of the appellant's policy documents; the Bwondara Committee Report and the Board Paper, not adopted, were not binding and did not become contractual terms.
Ordinarily recommendations do not bind the recipient; they must be adopted by the Board to become policy. Each report required its own independent adoption process. The Board adopted the PwC Report but not the Bwondara Committee Report or the Board Paper, which 'fell through the cracks'. The Bwondara Committee Report therefore did not acquire the status of a binding contract between the appellant and the respondents.
Burden of proof in employment disputes where constitutional infringement/discrimination is alleged
Although Section 5(6) of the Employment Act places the burden on the employer, the employee must first discharge an initial evidential burden of establishing discrimination before the burden shifts.
The court adopted the Supreme Court's reasoning in Samson Gwer v KEMRI that the party making an averment must establish it on a balance of probability, and that Sections 108 and 109 of the Evidence Act govern. The operationalisation of Section 5(6) must conform to those provisions: the employee must first prove victimisation before the employer is called upon to disprove it.
Whether the respondents were subjected to discrimination and unfair labour practices
No. The respondents did not adduce evidence of differential treatment, establish comparators, or disprove the appellant's explanation for the 10% increment.
Discrimination occurs where similarly circumstanced individuals are treated differently. The respondents did not show how other employees in the same scenario were treated differently, did not identify which category of the PwC implementation matrix they fell into, and did not impute malice or ill motive. Pay differentials alone do not amount to discrimination.
Merits of the orders granted by the trial court
The trial Judge did not properly appreciate all the available evidence; the respondents' case was bound to fail and the judgment and orders of the trial court could not stand.
Having found that the respondents failed to discharge the initial burden of proof and did not prove discrimination or unfair labour practices, the court concluded that the trial Judge erred in awarding underpayments, cost of living adjustments, pension under-contributions and unpaid annual leave allowance.
Legal principles established
#- Recommendations in reports commissioned by a statutory board are not binding on the recipient; they bind only upon adoption by the Board.
- In employment disputes where discrimination is alleged, Section 5(6) of the Employment Act notwithstanding, the employee bears an initial burden of proof before it shifts to the employer.
- A trial court becomes functus officio on an issue it has already determined by ruling, absent review or appeal of that ruling.
Court orders
#- 1.The appeal is allowed and the entire judgment dated 24th August 2020 in Nakuru ELRC Cause No. 212 of 2017 is set aside in its entirety and substituted with an order dismissing the respondents' further amended Memorandum of Claim dated 21st June 2019
- 2.The parties to bear their own costs
- On appeal from
- Employment and Labour Relations Court at Nakuru
- Cause No. 212 of 2017
- Jurisdiction invoked
- First appeal to the Court of Appeal under Rule 31(1)(a) of the Court of Appeal Rules, 2022 (statutory first appeal from the ELRC)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "National Social Security Fund v Peter & 47 others (Civil Appeal E020 of 2021) [2023] KECA 804 (KLR)", Case Analysis (2023). Court of Appeal at Nakuru Civil Appeal (from Nakuru ELRC Cause No. 212 of 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/804/eng@2023-06-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.