KENYA UNION OF DOMESTIC, HOTELS, EDUCATIONAL INSTITUTIONS, HOSPITALS AND ALLIED WORKERS UNION [KUDHEIHA VASSOCIATION FOR THE PHYSICALLY DISABLED OF KENYA[APDK] [2013] KEELRC 262 (KLR)
The bottom line
#A Kenyan court ruled that retiring disabled employees at 55 was unlawful because the law sets their retirement age at 60, awarding each affected worker compensation.
What this practically means
#Executive summary
#Key legal issues
#Retirement age of disabled employees under CBA and the Persons with Disabilities Act 2003
Retirement of the four grievants at 55 years was unfair and unlawful; Clause 22 of the registered CBA fixing 60 years for disabled employees prevails, and the CBA cannot confer less benefit than section 15(6) of the Act
Clause 22 of the registered CBA came into effect on 1st August 2004 and fixed retirement at 60 for disabled employees. The CBA remained in force after expiry until amended. The Court declined to investigate the alleged unilateral alteration at registration. The Persons with Disabilities Act places the mandatory retirement age for the disabled at 60, and the Court applies the law as it is, notwithstanding pending proposals for reform and the Respondent's sustainability arguments. Although Lenaola J's decision in Kimani was referenced, the Court grounded its ruling in the CBA and statute.
Proper remedy for unfair premature retirement
Compensation of five months' gross monthly salary per grievant instead of reinstatement
The employees were about 59 years old at judgment, had been out of employment for four years, had received retirement benefits and moved on. Reinstatement would disrupt their lives and the Respondent's operations, and they would serve only about a year before reaching 60. Compensation was held adequate, suitable and fair.
Burden of proof on collective CBA-implementation claims
All economic claims except the retirement issue failed for want of evidence
The Respondent produced payrolls, payment schedules and vouchers demonstrating compliance with the wage award and CBA allowances. The Claimant produced no counter-evidence and called no affected employees to testify or swear affidavits. The Court held it was not for the Respondent to prove a case brought by the Claimant, and rejected the wage, house rent, traveling, safari allowance, casualization and long service increment claims.
Legal principles established
#- A registered CBA binds the parties and the Court will not look behind the circumstances of its registration; retirement age in a CBA cannot be less favourable than the statutory minimum in section 15(6) of the Persons with Disabilities Act
- The Court applies the law as it stands, not as it might be reformed by pending legislative proposals
- A party alleging breach of a CBA must prove it with real evidence from affected employees, not mere statements of counsel
Court orders
#- 1.Declaration that the retirement of the four grievants (Suleiman, Wakarima, Chomba and Njaramba) at 55 years amounted to unfair and unlawful termination of employment
- 2.Respondent to pay each Grievant five months' gross monthly salary at the rate applicable on the date of retirement
- 3.All other claims rejected
- 4.No order on costs
- Jurisdiction invoked
- Industrial Court jurisdiction over trade disputes and employment claims (Labour Institutions Act); economic dispute arising from Court Award in Cause No. 2 of 2007 and CBA
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "KENYA UNION OF DOMESTIC, HOTELS, EDUCATIONAL INSTITUTIONS, HOSPITALS AND ALLIED WORKERS UNION [KUDHEIHA VASSOCIATION FOR THE PHYSICALLY DISABLED OF KENYA[APDK] [2013] KEELRC 262 (KLR)", Case Analysis (2013). Industrial Court Cause 749 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/262/eng@2013-05-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.