Samuel Adero Nyamburi v Kenya National Union of Teachers & Kenya National Union of Teachers - Homabay Branch [2016] KEELRC 148 (KLR)
The bottom line
#A Kenyan court ruled that winning an election challenge does not automatically restore you to a union office or entitle you to years of unpaid salary.
What this practically means
#Executive summary
#Key legal issues
#Whether the deceased remained Branch Executive Secretary after the elections of 4th May 2006 were declared void ab initio
The deceased was in office only between 20th July and 8th August 2006; the Kisii judgment did not reinstate him and he was not entitled to salaries after 4th May 2006.
The court traced the Kisii HCCC No. 59 of 2006 litigation: Mwera J vacated the consent order keeping the deceased in office and ordered him to vacate; Musinga J declared the 2006 elections void ab initio and nullified the officials' election but refused the injunction prayers as overtaken by events. The court held the void ab initio declaration did not reinstate the deceased, whose term had expired, and the officials elected on 8th May 2006 registration remained in office until the fresh elections ordered in 2010.
Whether the deceased was entitled to refund of the 31% pension contribution paid to TSC
Not entitled; pension was paid with his salary and remittance to TSC was his responsibility.
The court examined the KNUT Terms and Conditions of Service for Branch Executive Secretaries, the TSC release letter of 19th September 2001, and the KNUT letter of 31st October 2001 requiring remittance of the 31% pension contributions. The deceased's payslips contained a pension item. On that documentary basis, the court agreed with the respondents that the deceased received pension with his salary and had to remit it himself.
What terminal benefits were payable
Only annual leave of Shs.124,787.90 and pension of Shs.741,527.90 computed under the Staff Terminal Benefits Scheme (TME x TMS/10) over 103 months.
Service gratuity had been paid to the last month worked; consultation allowances and other items were unproved. The annual leave claim was uncontroverted despite the employer's statutory duty to keep leave records. Pension was conceded up to May 2006, but the court applied the January 2003 scheme's corrections (which had no stated effective date) to compute the lumpsum using TME of 71,993 over 103 months of service rather than the capped 60 months.
Legal principles established
#- An election declared void ab initio does not automatically restore a defeated office-holder to office; a court judgment nullifying elections does not reinstate a claimant unless it expressly orders reinstatement.
- Pension paid as part of salary is the employee's responsibility to remit, and the employer is not liable to refund amounts the employee paid to TSC.
- Unpaid leave claims must be controverted by the employer, which bears the duty of keeping leave records under section 10(6) and (7) of the Employment Act.
Court orders
#- 1.Award of Annual Leave of Shs.124,787.90 to the Claimant
- 2.Award of Pension of Shs.741,527.90 to the Claimant
- 3.Total award of Shs.866,315.80 to the Claimant
- 4.Costs awarded to the Claimant
- Jurisdiction invoked
- Employment and labour relations jurisdiction of the Employment & Labour Relations Court (first-instance employment cause)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Samuel Adero Nyamburi v Kenya National Union of Teachers & Kenya National Union of Teachers - Homabay Branch [2016] KEELRC 148 (KLR)", Case Analysis (2016). Cause No. 58 of 2013 (Formerly Nairobi E&LRC Cause No. 726 of 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/148/eng@2016-11-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.