Titus Wamalwa Khaemba v Transport Workers Union & another [2016] KEELRC 1848 (KLR)

Employment and Labour Relations Court of Kenya

5 August 2016

MNMathews Nderi Nduma

1,145 words in judgment

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The bottom line

What this practically means

Executive summary

The claimant, Titus Wamalwa Khaemba, brought a notice of motion dated 15th April 2016 seeking review and clarification of the court's judgment of 5th February 2016, in which the court had held that the alteration of his terms and conditions of service by the union's finance committee was unlawful and contrary to the union constitution. A dispute arose between the claimant and the respondents over how the judgment should be implemented: whether arrears were payable at a gross rate of Kshs.95,000 per month (Kshs.80,000 salary plus Kshs.15,000 allowances) as before the alteration, or at Kshs.40,000 per month as the respondents contended. The respondents opposed, arguing the claimant never pleaded a specific amount, that his gross salary was Kshs.40,000, that the Kshs.80,000 increase by the late secretary general was never approved by the finance committee, and that the higher payments arose from an unlawful double salary paid while the claimant acted as general secretary. The court found that the respondents had not denied the alteration of terms in their defence, having only justified it on financial difficulties. It clarified that the enhanced salary of Kshs.80,000 applied only while the claimant simultaneously held the positions of acting general secretary, deputy general secretary and Airport branch secretary. The court ordered arrears at Kshs.95,000 per month for the acting period, and at Kshs.40,000 per month plus transport allowance of Kshs.10,000 from April 2015 and branch operation allowance of Kshs.5,000 per month from May 2015 thereafter, with computation and payment within 30 days. Costs of the application were awarded to the claimant against the respondents.

Key legal issues

Interpretation of the judgment of 5th February 2016 regarding rates of arrears

Holding

The ambiguity is resolved by awarding arrears at Kshs.95,000 per month only for the acting general secretary period and at Kshs.40,000 per month plus allowances thereafter

Reasoning

The court analysed the pleadings, the defence and its earlier judgment. It noted the defence did not deny the alteration of terms but sought to justify it on financial grounds. The earlier judgment had linked the higher salary to the period the claimant simultaneously held three union positions, and once Mr Dan Mihadi was elected general secretary the entitlement fell to Kshs.40,000 per month, plus the transport and branch operation allowances claimed.

p. 3

Whether the respondents' challenge to the salary figures succeeds

Holding

Rejected; the respondents had not denied the alteration of terms, and the payroll relied on was based on an unlawful double salary paid while the claimant acted as general secretary

Reasoning

The respondents contended the claimant earned Kshs.40,000 per month and that the Kshs.80,000 increase by the late secretary general was never approved by the finance committee. The court found the respondents had not denied the change of terms in their defence, having only justified it on financial difficulty, which the prior judgment had already found unlawful as contrary to the union constitution.

p. 2

Legal principles established

The enhanced salary of Kshs.80,000 per month was payable to the claimant only while he simultaneously held the positions of acting general secretary, deputy general secretary and branch secretary of the Airport branch
Arrears after a substantive general secretary was elected fall to be calculated at the lower rate of Kshs.40,000 per month plus allowances

Court orders

1.The claimant is awarded arrear salary calculated at Kshs.95,000 per month for the period the claimant held the position of acting general secretary
2.The rest of the arrears be paid at the rate of Kshs.40,000 per month plus transport allowance of Kshs.10,000 from April 2015 and branch operation allowance of Kshs.5,000 per month from May 2015
3.The computation and payment be made within thirty (30) days from the date of the ruling
4.Respondents to pay costs of the application

Jurisdiction invoked: Inherent jurisdiction of the Employment and Labour Relations Court to interpret/clarify its own judgment (application for review/interpretation of judgment delivered 5th February 2016)

Key timeline

Practical implications

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Cite this brief

Caselaw, "Titus Wamalwa Khaemba v Transport Workers Union & another [2016] KEELRC 1848 (KLR)", Case Analysis (2016). Cause No. 1188 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1848/eng@2016-08-05

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