Barlays Bank of Kenya Limited v Banking Insurance and Finance Union (Civil Appeal E013 of 2022) [2025] KECA 253 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that employees who took early retirement can still benefit from a pay agreement backdated to when they were still working.
What this practically means
#Executive summary
#Key legal issues
#Whether grievants who left service before a collective bargaining agreement was signed could benefit from a backdated CBA covering their period of service
Yes. The CBA took effect from 1st March 2013 by agreement, applied to unionisable employees in employment as at that date, and the grievants were in employment on that date; the CBA therefore became part of their contracts of service and the employer cannot escape its obligations.
The Court found that although the CBA was assented to on 19th August 2013 and registered after the grievants' exit on 31st March 2013, clause A2 and the implementation memo fixed the commencement at 1st March 2013 and extended eligibility to employees in employment on that date. Nothing in law prohibits retrospective application of a CBA by consent. The Court aligned itself with Teachers Service Commission v Simon P. Kamau, where a CBA signed after retirement was held to form part of the contract of service for pension computation. The claim of coercion into the voluntary exit scheme was unsupported by evidence.
Whether the grievants were coerced into the voluntary exit scheme
No. There was no evidence of coercion; the grievants willingly and voluntarily applied for the voluntary exit scheme, though motivated by apprehension of job loss due to restructuring.
The memorandum of claim alleged coercion, but the record contained no supporting evidence. The Court held that apprehension of impending job loss arising from a restructuring announcement does not amount to coercion or intimidation. It associated itself with William Barasa Obutiti v Mumias Sugar Company Limited, affirming that an employer and employee may at any time terminate a contract by agreement on terms such as a voluntary early retirement scheme, overriding restrictions in the original contract.
Legal principles established
#- An employee who has exited service under a voluntary exit scheme may still benefit from a collective bargaining agreement signed after their exit where the agreement's commencement date is backdated to a period when they were in service and its terms extend to employees in employment as at that date.
- A backdated collective bargaining agreement whose commencement date covers a period when the grievants were still in service becomes part and parcel of the contract of service, binding the employer to its obligations.
- On a first appeal the Court of Appeal's role is akin to a retrial: it reconsiders and re-evaluates the evidence and draws its own conclusions, but will not interfere with findings of fact based on evidence or arrived at on correct principles.
Court orders
#- 1.The appeal is dismissed
- 2.Costs of the appeal awarded to the respondent
- On appeal from
- Employment and Labour Relations Court
- Nairobi ELRC Cause No. 1597 of 2015
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Employment Act/Labour Relations Act appellate framework; Rule 33 of the Court of Appeal Rules, 2022 invoked on costs
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Barlays Bank of Kenya Limited v Banking Insurance and Finance Union (Civil Appeal E013 of 2022) [2025] KECA 253 (KLR)", Case Analysis (2025). Civil Appeal (Nairobi ELRC Cause No. 1597 of 2015 appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/253/eng@2025-02-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.