Kenya Union of Domestic, Hotels, Educational Institutions, Hospitals and Allied Workers v Leshau Boys' High School [2014] KEELRC 818 (KLR)
The bottom line
#Kenyan employers cannot unilaterally cut collective agreement benefits or use NSSF membership to deny workers negotiated gratuity.
What this practically means
#Executive summary
#Key legal issues
#Entitlement to gratuity despite NSSF membership
The court upheld the gratuity award; NSSF membership does not displace a contractual entitlement to gratuity under a collective agreement
The 1986 collective agreement was subsisting when the 1993 Regulations were published, and no Ministerial determination altering it was shown. Section 10(5) requires consultation to vary terms of service, and no evidence of agreed variation existed. Section 35(6) does not preclude agreed gratuity over and above the statutory scheme, so the grievants remained entitled to gratuity under clause 31(a).
Notice pay and annual leave for voluntary retirees
The judgment was reviewed: the grievants were not entitled to a termination notice, and the June 2010 payment was properly pay in lieu of annual leave, reducing the award by Kshs.13,270.00
Because the retirement was voluntary and accepted by the respondent, no termination notice was payable. The one month salary paid in June 2010, though no work was done, was correctly treated as covering annual leave rather than pay in lieu of notice. The court agreed with the applicant on this ground and reviewed the judgment accordingly.
Legal principles established
#- Section 35(6) of the Employment Act does not bar parties from agreeing retirement benefits or gratuity beyond statutory NSSF entitlements
- Terms and conditions of service in a subsisting collective agreement cannot be varied unilaterally; consultations are necessary under section 10(5) of the Employment Act
Court orders
#- 1.The claimant union to serve, within seven days, this ruling and the judgment of 29.11.2013 upon the Cabinet Secretary for Education, Science and Technology and the Attorney General for the Cabinet Secretary's considered further action
- 2.The respondent to pay the grievants Kshs.141,394.00 as found due in the ruling
- 3.Payment to be by 1.04.2014, in default interest payable at court rates from the date of filing the suit
- 4.The respondent to pay costs of the suit
- 5.Each party to bear own costs of the application
- Jurisdiction invoked
- Sections 1A, 1B and 3A of the Civil Procedure Act and Order 45 Rules 1, 2(1) and Order 51 Rule 1 of the Civil Procedure Rules, 2010; Employment Act, 2007
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 v Leshau Boys' High School [2014] KEELRC 818 (KLR)", Case Analysis (2014). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/818/eng@2014-02-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.