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Court of AppealDismissedCourt of Appeal at Nairobi (Employment and Labour Relations Appeal)

Kenya Railways Corporation v Ododa & 216 others (Civil Appeal E345 of 2023) [2024] KECA 1620 (KLR)

Court of Appeal of Kenya
8 November 2024
ETE. TuiyottJLJ. LesiitENE. W. Ngenye-Macharia
8,846 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed that 218 retrenched Kenya Railways workers can still claim unpaid terminal dues because the employer's breach continued for years.

What this practically means

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Executive summary

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The Kenya Railways Corporation appealed against the judgment of M Onyango, J in the Employment and Labour Relations Court, which had found in favour of 218 former employees retrenched in 1998. The respondents claimed unpaid terminal dues under a CBA dated November 24, 1997 and a Central Joint Council Agreement dated November 10, 1997, both registered in Industrial Court Case No 169 of 1998, including salary increments of 40% and 70% said to have been only partially paid, and sought to retain staff houses pending full payment. Before the Court of Appeal three issues fell for determination: whether the claim was res judicata by dint of the Nakuru High Court case; whether it was time barred; and whether it fell under the Retirement Benefits Act for the Retirement Benefits Authority Tribunal. The Court, as a first appellate court, re-evaluated the evidence. It held the claim was not res judicata because the Nakuru case involved locomotive drivers and different issues, and the elements of res judicata must be satisfied conjunctively. On limitation, it held that the appellant's ongoing failure to honour the CBA constituted a continuing injury under section 90 of the Employment Act, so time had not begun to run, especially as the appellant never stated when the breach ceased. On jurisdiction, it held that the dispute was between employer and employees over enforcement of a collective agreement, within the ELRC's jurisdiction, not a grievance against a scheme's trustees under sections 46 and 47 of the Retirement Benefits Act. The appeal was dismissed with costs to the respondents, affirming the decision below.

Key legal issues

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01

Whether the respondents' claim was res judicata given the prior Nakuru case

Holding

The claim was not res judicata because the parties and issues differed substantially from the Nakuru case, which involved locomotive drivers claiming overtime and night shift allowances, while the ELRC claim was by employees of all cadres enforcing the CBA and CJC Agreement

Reasoning

The Court compared the parties, subject matter and prayers in the Nakuru case and the ELRC claim. The Nakuru case was filed by locomotive drivers and centred on overtime and night shift allowances and a 25% award; the ELRC claim involved employees of all cadres, some of whom were not parties to the Nakuru case. The Nakuru court did not address the terms of the CBA and CJC Agreement. Since the elements of res judicata must be satisfied conjunctively, the claim was not barred.

p. 21
02

Whether the respondents' claim was time barred

Holding

The claim was not time barred because the appellant's continuing failure to honour the CBA and CJC Agreement constituted a continuing injury under section 90 of the Employment Act, and the appellant never indicated when the breach ceased

Reasoning

Section 90 of the Employment Act allows claims based on continuing injury within twelve months of cessation. The Court, drawing on South African authority in Barnett and its own precedents in German School Society v Ohany and Nganga v Christ the King Parish, held that the unpaid terminal dues were a continuous breach giving rise to a series of fresh causes of action. Letters by the appellant acknowledging the unpaid dues confirmed the breach persisted, so time did not run.

p. 23
03

Whether the dispute fell within the Retirement Benefits Authority Tribunal's jurisdiction rather than the ELRC's

Holding

The ELRC had jurisdiction because the dispute was between an employer and employees over enforcement of a CBA and CJC Agreement, not a grievance against a decision of a scheme's manager or trustees

Reasoning

Sections 46 and 47 of the Retirement Benefits Act apply where a member is dissatisfied with a decision of a manager, administrator, custodian or trustees of a scheme. Here the respondents were dissatisfied with the appellant's failure to honour the CBA, and no decision or tabulation by the Scheme's trustees was in place, distinguishing Jimmy R Kavilu. The ELRC's jurisdiction under section 12 of the ELRC Act covers registration and enforcement of collective agreements.

p. 24

Legal principles established

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  • All elements of res judicata under section 7 of the Civil Procedure Act must be satisfied conjunctively before the doctrine can be invoked
  • A continuing breach by an employer of a term of an agreement with an employee is a continuing injury under section 90 of the Employment Act, and time does not run until the breach ceases; a continuing injury gives rise to a distinct and separate cause of action for as long as it persists
  • Disputes referred to the Retirement Benefits Authority under sections 46 and 47 of the Retirement Benefits Act are those in which a person is aggrieved by a decision of a manager, trustee or administrator of a scheme; disputes between an employer and employees to enforce a collective agreement fall within the jurisdiction of the ELRC

Court orders

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  1. 1.The appeal is dismissed
  2. 2.Costs of the appeal awarded to the respondents
On appeal from
Employment and Labour Relations Court
Nairobi ELRC Cause No 1789 of 2015
Jurisdiction invoked
Appeal from the Employment and Labour Relations Court to the Court of Appeal under the Employment and Labour Relations Court Act; court exercised first appellate jurisdiction over the ELRC decision

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (12)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kenya Railways Corporation v Ododa & 216 others (Civil Appeal E345 of 2023) [2024] KECA 1620 (KLR)", Case Analysis (2024). Court of Appeal at Nairobi (Employment and Labour Relations Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1620/eng@2024-11-08

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.