Kudheiha Workers v Ng’araria Girls Secondary School [2015] KEELRC 135 (KLR)
The bottom line
#A Kenyan court confirmed that collective bargaining agreements can guarantee retirement benefits beyond NSSF, and ordered a school board to pay staff gratuity with interest.
What this practically means
#Executive summary
#Key legal issues
#Applicability of DPM circulars to the grievants
The circulars applicable to civil servants did not apply to the grievants; the claim for underpayment failed.
The court adopted its earlier judgment between the same parties in Kudheiha Workers v Board of Management, Ng'araria Girls Secondary School [2015]eKLR, in which it was held that the circulars issued by the Directorate of Personnel Management applied to civil servants only and did not govern the grievants' terms of service under the CBA. Accordingly, the underpayment claim founded on the circulars could not succeed.
Entitlement to NSSF and gratuity/pension under the CBA
The grievants were entitled to gratuity per clause 31 of the CBA in addition to NSSF.
Relying on section 35(5) and 35(6) of the Employment Act, 2007, the court held that the parties were entitled to agree in the collective agreement to fix gratuity and that such agreement operated over and above the statutory NSSF entitlement. Section 35(6) does not preclude agreements for retirement benefits over and above NSSF; statutory provisions are a floor, not a ceiling.
Legal principles established
#- The provisions of the Employment Act, 2007 are a floor and not a ceiling; parties may agree in a CBA to more favourable terms including gratuity or pension over and above NSSF.
Court orders
#- 1.The respondent to pay the grievants gratuity per clause 31 of the CBA by 31.12.2015 and, in default, interest at court rates payable from the date of retirement on 31.12.2012 till full payment
- 2.The respondent to pay the claimant's costs of the suit
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over the employment dispute (Employment Act, 2007 and CBA claims); not expressly stated
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kudheiha Workers v Ng’araria Girls Secondary School [2015] KEELRC 135 (KLR)", Case Analysis (2015). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/135/eng@2015-12-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.