David Mwangi Gioko & 43 others v Nairobi City Water And Sewerage Company [2014] KEELRC 716 (KLR)
The bottom line
#Nairobi Water must pay 42 former workers court-awarded benefits within 21 days, but a Kshs.45 million CBA arrears claim failed for lack of union involvement.
What this practically means
#Executive summary
#Key legal issues
#Bona fides of disputed Claimants
Nyururu and Njagi are not bona fide Claimants; Chege's claim is upheld because the Respondent varied her retirement by notice
Nyururu accepted a 3-year contract later extended by 16 months, confining his entitlements to that contract. Njagi attained 55 years in 2008, before the 2009 extension of retirement age to 60, so she was properly retired. Chege also turned 55 in 2008 but was not retired; the Respondent varied her contract by a retirement notice dated 16th January 2009, retiring her on 31st December 2009, so her claim was upheld.
Arrears of salaries and allowances under the CBA
Claim declined; the Labour Office's proposed figure was not accepted and the claim is separable, to be pursued with the Trade Union
The Labour Office found arrears of Kshs.40,319,871.60, but the Court held it was not persuaded this was the best approach: the CBA was negotiated by a union not party to the claim, its officials did not testify, the figure included arrears owed to non-parties, and the Respondent's explanations were half-hearted. The Court found it had no proper basis in law or fact to order payment, but declined the claim without prejudice to a fresh claim.
Rectification of the record on the number of Claimants
The record was corrected to show 44 Claimants after accounting for withdrawals and duplicated names
Originally 64 Claimants; 18 withdrew on 6th November 2012 leaving 46; two names (Christine Kimwele and Ramjus Othieno) were duplicated, reducing the number to 44. The Court also noted an erroneous inclusion of A. Wairigi Wamburi, a withdrawn claimant, in the Claimants' schedule, which raised the number to 45 and only served to delay settlement.
Legal principles established
#- Where an employee accepts contractual terms of employment, terminal benefits if any must be claimed under that contract
- Claims founded on a CBA negotiated by a non-party trade union whose officials have not testified cannot be sustained without sufficient material
Court orders
#- 1.The Record is rectified to show there are 44 Claimants
- 2.The Claims by Samuel Muiruri Nyururu and Jacinta Wanjiku Njagi are dis-allowed
- 3.The Claim for arrears of salaries and allowance of Kshs.45,242,786.30 is declined, without prejudice to a fresh claim ideally with participation of the Trade Union
- 4.The 42 successful Claimants shall be paid the items indicated in paragraphs (b) and (c) of the first Award, less Kshs.4,229,425 already paid and acknowledged
- 5.The Respondent shall pay this amount within 21 days of delivery of the further Award, in default execution to proceed
- 6.No order on the costs
- Jurisdiction invoked
- Jurisdiction as the Industrial Court over the employment dispute (Issue in Dispute: Unfair and Unlawful Termination), further to the Court's Award dated 22nd March 2013
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "David Mwangi Gioko & 43 others v Nairobi City Water And Sewerage Company [2014] KEELRC 716 (KLR)", Case Analysis (2014). Cause Number 1722 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/716/eng@2014-01-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.