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ELRCAllowedNot stated in judgment (memorandum of claim dated 30th November, 2011)· [2012] KEELRC 197 (KLR)

CHARLES M. SHITIAVAI V CITY COUNCIL OF NAIROBI [2012] KEELRC 197 (KLR)

Industrial Court of Kenya
20 November 2012
HWHellen Wasilwa
1,524 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A retired Nairobi City Council worker won over Ksh.1 million in salary because delaying his pension payment legally counted as continued employment.

What this practically means

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Executive summary

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The claimant, Charles M. Shitiavai, a former Security Officer of the City Council of Nairobi employed around 1987 and retired on grounds of age in 2005, sued for salary for the period between his retirement and the eventual payment of his terminal dues in August 2010. His dues of Ksh.906,992/25 had been awarded in Chief Magistrate's Civil Case 7449 of 2008 and paid in 2010 following proceedings including High Court Miscellaneous (JR) Application 488 of 2009. Relying on Section 16A of the Pensions (Amendment) Act, 2003, he claimed Ksh.19,655 per month for 52 months (April 2006 to August 2010), totalling Ksh.1,022,060. The Respondent denied liability, asserting the claimant fell under the Local Government Provident Fund Act, that the claim was time barred, and that the court lacked jurisdiction as the issues had been determined in earlier suits. The parties agreed to have judgment decided on pleadings and submissions without oral evidence. The court held that under Article 162(2) of the Constitution and Section 12(1) of the Industrial Court Act, 2011, it had exclusive jurisdiction over employment disputes; that the claim was not res judicata since it concerned dues accruing after the earlier decree was satisfied; and that Section 16A deems a pensioner still in employment until gratuity is paid in full. The Respondent failed to prove the Provident Fund Act applied. Judgment was entered for the claimant for Ksh.1,022,060 with costs against the Respondent.

Key legal issues

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01

Jurisdiction of the Industrial Court over the claim

Holding

The court has jurisdiction notwithstanding prior proceedings in the magistrate's court and the High Court.

Reasoning

Article 162(2) establishes courts with the status of the High Court for employment and labour disputes; Section 12(1) of the Industrial Court Act, 2011 grants exclusive jurisdiction over disputes arising out of employment. Since the dispute concerns an employee's dues after retirement, this court is the right forum notwithstanding earlier proceedings.

p. 2
02

Res judicata

Holding

The claim is not res judicata as it concerns dues accruing after the earlier decree was satisfied.

Reasoning

The earlier Chief Magistrate's suit and the High Court JR application dealt with the decretal sum of Ksh.906,992/25 and interest, which was paid in August 2010. The present claim covers salary for the period until payment, which was never litigated previously, so res judicata does not bar it.

p. 3
03

Entitlement to salary under Section 16A of the Pensions Act versus the Local Government Provident Fund Act

Holding

The claimant is entitled to salary for the delay period under Section 16A of the Pensions Act; the Respondent failed to establish the Provident Fund Act applied.

Reasoning

Section 16A entitles a pensioner to be retained in service until gratuity is paid in full, so he is deemed on duty during the delay. The Respondent did not prove it was a local authority bound by the Provident Fund Act nor that the claimant was a designated person under it.

p. 3

Legal principles established

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  • Any dispute relating to or arising out of an employment relationship must be resolved by the Industrial Court under Article 162(2) of the Constitution and Section 12(1) of the Industrial Court Act, 2011.
  • Under Section 16A of the Pensions Act, a pensioner whose gratuity remains unpaid is deemed still in employment and entitled to full pay until payment in full.
  • A claim for salary accruing after a prior decree was satisfied is not res judicata.

Court orders

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  1. 1.Judgment entered for the claimant in the sum of Ksh.1,022,060/= being salary for 52 months from April 2006 to August 2010
  2. 2.The Respondent to pay the costs of this cause

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 162(2)
  • Constitution of Kenya, 2010Article 47(1) and (2) (referred to as Article 27(1)(2) in the judgment)
  • Industrial Court Act, 2011Section 12(1) and Section 4
  • Pensions (Amendment) Act, 2003 / Pensions ActSection 16A
  • Local Government Provident Fund ActSections 2 and 7(1)

Cases cited (2)

  • Francis Njuguna Mwangi Vs Joseph Mahuro Maina
    Civil Case 1262 of 2005
  • Baer Albhai Nauji Vs Sultan Tasham Lawi and another
    CA No. 269/2001
Jurisdiction invoked
Article 162(2) of the Constitution of Kenya, 2010 and Section 12(1) of the Industrial Court Act, 2011

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "CHARLES M. SHITIAVAI V CITY COUNCIL OF NAIROBI [2012] KEELRC 197 (KLR)", Case Analysis (2012). Not stated in judgment (memorandum of claim dated 30th November, 2011). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2012/197/eng@2012-11-20

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