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ELRCDismissedCause No 1916 of 2015 (formerly Meru HCC No 159 of 2009)· [2016] KEELRC 766 (KLR)

Francis Bundi Kimathi v National Security Intelligence Service [2016] KEELRC 766 (KLR)

Employment and Labour Relations Court

2 September 2016

LNLinnet Ndolo

758 words in judgment

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The bottom line

A Kenyan court ruled that an employee who voluntarily resigned from public service loses all rights to pension benefits under the Pensions Act.

What this practically means

Executive summary

This judgment of the Employment and Labour Relations Court at Nairobi, delivered by Linnet Ndolo J on 2nd September 2016, determines a claim originally filed in the High Court at Meru in 2009 and transferred to the ELRC in 2015 at the Claimant's request. The parties had agreed that the Claimant would hand over and sign the Official Secrets Act Form, that the Respondent would issue a clearance certificate, and that the only matter for determination was the Claimant's claim for pension under the Pensions Act. The Respondent maintained that the Claimant, having voluntarily resigned from service, was not entitled to benefits under the Pensions Act, relying on Regulation 38(2) of the Code of Regulations and on Section 6 of the Pensions Act read with Regulations 6 and 26 of the Pensions Regulations, which permit pension only on retirement at retirement age, abolition or re-organisation of office, permanent disability, or in the public interest. The Claimant submitted that his resignation was caused by illness and was therefore not voluntary, blaming the Respondent for failure to provide adequate medical cover. The court examined the resignation notice dated 7th February 2005 and the acceptance letter of 12th April 2005, and found no evidence of coercion; complaints about working conditions did not amount to coercion, and there was no evidence of permanent disability. The claim for pension under the Pensions Act was accordingly dismissed with no order for costs. Benefits under the NSIS Staff Superannuation Scheme were not in dispute.

Key legal issues

Whether the Claimant's resignation was voluntary

Holding

The resignation was voluntary; no evidence of coercion or of permanent disability was adduced

Reasoning

The court examined the Claimant's resignation notice dated 7th February 2005 and the Respondent's letter of acceptance dated 12th April 2005. It found no evidence of coercion in the resignation letter and held that the Claimant's complaints about working conditions did not amount to coercion. It also found no evidence that the Claimant left employment on account of permanent disability, one of the recognised grounds for pension eligibility.

p. 3

Entitlement to benefits under the Pensions Act upon voluntary resignation

Holding

A public officer who voluntarily resigns is not eligible for pension under the Pensions Act

Reasoning

The Respondent relied on Regulation 38(2) of the Code of Regulations and on Section 6 of the Pensions Act read with Regulations 6 and 26 of the Pensions Regulations, which permit pension only on retirement at retirement age, abolition or re-organisation of office, permanent disability, or in the public interest. Having found the resignation voluntary and no permanent disability, the court concluded the Claimant was not entitled to pension.

p. 3

Legal principles established

An employee who voluntarily resigns from Government service forfeits all claims to retirement benefits under the Pensions Act
A resignation letter absent evidence of coercion constitutes a voluntary resignation; complaints about working conditions do not of themselves amount to coercion

Court orders

1.The Claimant's claim is dismissed
2.No order for costs

Authorities

Legislation

Official Secrets Actclearance form
Pensions ActSection 6
Code of RegulationsRegulation 38(2)
Pensions RegulationsRegulations 6 and 26
NSIS Staff Superannuation Schemedisbursement of benefits

Jurisdiction invoked: Transferred from the High Court at Meru to the Employment and Labour Relations Court in 2015 on the Claimant's request

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Francis Bundi Kimathi v National Security Intelligence Service [2016] KEELRC 766 (KLR)", Case Analysis (2016). Cause No 1916 of 2015 (formerly Meru HCC No 159 of 2009). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/766/eng@2016-09-02

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