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ELRCDismissedCause Number 438 of 2013· [2015] KEELRC 1084 (KLR)

Stephen K Kachila v Bamburi Cement Limited [2015] KEELRC 1084 (KLR)

Industrial Court of Kenya
22 May 2015
JRJames Rika
1,572 words in judgment
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The bottom line

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A former Bamburi Cement manager lost his gratuity, bonus and salary increment claims because the CBA benefits applied only to unionised staff and he offered no evidence.

What this practically means

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Executive summary

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Stephen K. Kachila, a former Senior Miller employed by Bamburi Cement Limited from 1978 until his retirement on 30th April 2011 at age 55, claimed his retirement gratuity had been wrongly computed. He had served as a unionisable employee from 1978 to 1985 before promotion to management, and sought a balance of gratuity calculated under the CBA in force at his retirement date (Kshs. 1,330,343), plus Production Bonus of Kshs. 182,000 and a Salary Increment of Kshs. 18,000. He also sought expungement of the Respondent's Statement of Response for being filed 78 days after service, contrary to Rule 13(1) of the Industrial Court (Procedure) Rules 2010. The Respondent maintained the claimant was correctly paid, had accepted transfer out of CBA coverage upon joining the Pension Scheme, and could not claim CBA gratuity; bonus and increments were discretionary. The court disposed of the matter on pleadings, documents and submissions. Adopting its earlier findings in Thomas Sila Nzivo v Bamburi Cement Limited, the court held the claimant, having left the union in 1985 and drawn pension, could not enjoy CBA gratuity in 2011. The bonus and increment claims failed for want of evidential foundation, being discretionary benefits. Late filing of the Response was agreed to offend Rule 13(1) but, following Kilinda v Bamburi Cement Limited, attracted only costs rather than striking out. All claims were rejected in their entirety, though costs were awarded to the claimant. Judgment delivered at Mombasa on 22nd May 2015 by Rika J.

Key legal issues

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01

Entitlement to gratuity under the CBA after promotion to management

Holding

Gratuity under the CBA is not payable to a former unionisable employee who was promoted, joined the pension scheme, and accepted transfer out of CBA coverage.

Reasoning

The court adopted its earlier findings in Nzivo v Bamburi Cement Limited: the claimant moved to a management position, joined the Pension Scheme, signed acceptance of transfer, and could not claim CBA gratuity while drawing pension. The CBA formula could not be read into his post-1985 contract.

p. 3
02

Production bonus and salary increment claims

Holding

Both are discretionary, performance-based benefits and the claimant produced no evidential foundation for them.

Reasoning

Bonus is an incentive paid on the employer's and individual employee's performance; the claimant floated an unexplained figure of Kshs. 182,000. Salary increment depends on performance appraisal, none of which was availed. Both claims failed for want of evidence.

p. 4
03

Late filing of the Statement of Response

Holding

Filing 78 days after service offended Rule 13(1), but the sanction is costs, not striking out the Response.

Reasoning

Following Kilinda v Bamburi Cement Limited, the court agreed the late filing breached the 14-day rule but held that the interest of justice favours an order of costs against the indolent respondent rather than closing out the Response.

p. 4

Legal principles established

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  • An employee who leaves the unionisable ranks and joins a pension scheme cannot claim CBA gratuity applicable to unionisable employees.
  • Late filing of a Statement of Response contrary to Rule 13(1) should attract costs, not outright striking out, in the interest of justice.

Court orders

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  1. 1.The claims for additional gratuity, salary increment and production bonus are rejected in their entirety.
  2. 2.Costs to the Claimant.

Authorities

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Legislation

  • Industrial Court (Procedure) Rules 2010Rule 27(1)(a)
  • Industrial Court (Procedure) Rules 2010Rule 13(1)

Cases cited (2)

  • Thomas Sila Nzivo v. Bamburi Cement Limited
    Cause Number 117 of 2013
  • Joseph Kilinda v. Bamburi Cement Limited
    Cause Number 308 of 2013
Jurisdiction invoked
Industrial Court (Procedure) Rules 2010, Rule 27(1)(a) - dispute over terminal benefits

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (12)

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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, "Stephen K Kachila v Bamburi Cement Limited [2015] KEELRC 1084 (KLR)", Case Analysis (2015). Cause Number 438 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1084/eng@2015-05-22

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