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ELRCPartially AllowedCause Number 282 of 2012· [2013] KEELRC 10 (KLR)

George Wesonga Ojwang’ v Kenya National Union of Teachers [KNUT] [2013] KEELRC 10 (KLR)

Industrial Court of Kenya
20 December 2013
2,505 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Industrial Court ordered KNUT to pay a retired chairman over Kshs. 16.6 million in terminal dues, ruling that a negotiated retirement agreement counts even when staff rules say otherwise.

What this practically means

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Executive summary

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The Claimant, a retired National Chairman of KNUT, sued for terminal benefits. Employed from April 1986 as Executive Secretary, Busia Branch, and later as 1st National Vice-Chairman (2004) and National Chairman (2007), he retired on 31st July 2011. He sought a balance of terminal dues of Kshs. 16,616,209.70 plus various allowances, relying on an agreement dated 2nd February 2011 signed with the Acting Secretary General and Acting Treasurer, which computed benefits on a 25-year period. The Respondent contended that terminal dues were governed by the Staff Retirement Benefits Scheme Rules of January 2003, restricting Head Office service to 15 years and capping the Claimant's entitlement at his 7 years and 6 months at Head Office; it argued the 2011 agreement violated the Rules and the Union Constitution, that Busia period dues had been paid after earlier litigation, and that advances of Kshs. 5,800,000 made between 2008 and 2010, plus other deductions, left only Kshs. 270,000 payable. The Court held the 2nd February 2011 agreement was a binding contract, that the Rules were minimum standards amendable to the employee's benefit and had been amended by NEC in 2007 to adopt a 25-year maximum, and that service at Busia counted as continuous uninterrupted employment. It also found no evidence that the Kshs. 5,800,000 were advances on terminal benefits. The Court awarded the balance of Kshs. 16,616,209.70 payable within 30 days, with costs to the Claimant, and rejected the other prayers.

Key legal issues

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01

Validity of the 2nd February 2011 agreement

Holding

The agreement was a binding contract superseding other retirement terms; the Principal Officials acted within their mandate

Reasoning

The Court held the agreement signed by the Claimant, the Acting Secretary General and the Acting Treasurer was binding and superseded other retirement terms. The Rules contained only minimum standards which can be improved to the employee's benefit. The Rules had in any event been amended by NEC to adopt a 25-year maximum, endorsing the agreement. There was no justification for departing from what the Principal Officials agreed to pay their former Chairman.

p. 4
02

Computation period for terminal benefits

Holding

Total years of service must include the entire 25 years, including Busia Branch service

Reasoning

Rule 5.3 defined the relevant period as continuous, uninterrupted employment of the union at branch, national or both. The Claimant joined in April 1986 and left on 31st July 2011, a period of 25 years. The submission that only the 7 years at Head Office counted had no basis under the Rules in either original or amended form.

p. 4
03

Alleged advance payments of terminal dues

Holding

No material showed the Kshs. 5,800,000 paid between 2008 and 2010 were advances on terminal benefits

Reasoning

The Court found nothing in the meetings, letters or agreements suggesting terminal dues were advanced before retirement. Terminal benefits became payable only after retirement, so payments made from 2008 when the Claimant had just become Chairman could not relate to them; the Claimant explained them as bonuses. The Court found the Respondent shifted position only after the Claimant had retired, in an effort to delay meeting its obligation.

p. 5

Legal principles established

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  • Minimum standards of retirement in staff rules can be varied and improved to the benefit of the employee
  • Terminal benefits under Rule 5.3 are computed on continuous uninterrupted employment of the union, whether at branch or national level

Court orders

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  1. 1.The remaining balance of terminal dues of Kshs. 16,616,209.70 shall be paid by the Respondent to the Claimant within 30 days of the delivery of the Award
  2. 2.Costs to the Claimant
  3. 3.Other prayers rejected

Authorities

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Legislation

  • Industrial Court [Procedure] Rules 2010Rule 21
  • KNUT Staff Retirement Benefits Scheme RulesRule 5; Rule 5.3
  • KNUT Union ConstitutionArticle 11
Jurisdiction invoked
Industrial Court [Procedure] Rules 2010, Rule 21; dispute of an employment/terminal benefits nature within the Industrial Court's mandate

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, "George Wesonga Ojwang’ v Kenya National Union of Teachers [KNUT] [2013] KEELRC 10 (KLR)", Case Analysis (2013). Cause Number 282 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/10/eng@2013-12-20

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