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ELRCDismissedCause No. 185 of 2013 (formerly Nakuru High Court Civil Suit No. 217 of 2005)· [2018] KEELRC 77 (KLR)

Lawrence O Moseti & 22 others v County Government of Nakuru [2018] KEELRC 77 (KLR)

Employment and Labour Relations Court of Kenya
22 November 2018
3,662 words in judgment
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The bottom line

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A Kenyan court dismissed 23 former council workers' claims for retirement-era salaries, overtime and allowances because they couldn't prove they actually worked or followed required procedures.

What this practically means

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Executive summary

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Twenty-three former employees of the Municipal Council of Nakuru, now absorbed into the County Government of Nakuru, claimed a declaration that they remained in service and salaries from January 2005, plus Kshs.2,089,656.30 for unissued uniforms, unpaid overtime and dues owed to Tupendane Sacco Society. They relied on a 2002 Collective Bargaining Agreement, particularly Clause 29(e) providing for retention on temporary basis where full retirement benefits were not paid out, and on the alleged breach of the Pensions (Amendment) Bill 2003. The respondent denied the claims, asserting lawful retirement on six months' notice, non-mandatory uniform issuance not convertible to cash, a prescribed authorisation process for overtime that was not followed, and that the Sacco was a separate legal entity. The court framed two issues: entitlement to salaries from January 2005, and entitlement to uniform allowances, overtime and Sacco dues. It held that Clause 29(e) required actual temporary employment or service, which none of the claimants pleaded or proved, so no salary was due for work not done. Overtime claims failed for want of the written head-of-department authorisation required by Clause 12. Uniform claims failed because the CBA provided no cash compensation and no loss was articulated. The Sacco claim failed as it concerned a third party. Reliance on a Bill rather than a statute, and on decisions in earlier unrelated suits by contemporaries, was rejected. All claims were dismissed with each party bearing their own costs.

Key legal issues

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01

Entitlement to salaries from January 2005 to date under Clause 29(e) of the CBA

Holding

Claim dismissed - Clause 29(e) required the officer to be employed on temporary basis until full benefits were paid, but none of the claimants pleaded or proved a temporary contract or continued service

Reasoning

The court read Clause 29 as intended to ensure a smooth retirement and payment of full benefits, with temporary employment where payment was not possible. The claimants all received retirement notices dated 26 March 2004 and none testified to having remained in service. To read the clause as entitling salary without any service would negate the CBA as a binding contract.

p. 4
02

Overtime claims by Moseti and Kiratu

Holding

Claims fail - Clause 12 of the CBA conditions overtime pay on approval and specific written authorisation by the head of department, which was not demonstrated

Reasoning

Clauses 11 and 12 of the CBA prescribe hours of work and overtime arrangements. Merely reporting an hour before and leaving an hour late does not demonstrate the required approval. The schedules submitted by the claimants had no corresponding approvals, and only doctors' overtime was regulated by fixed allowance of the Council.

p. 5
03

Claims for unissued uniforms and work tools

Holding

Claims fail - Clause 25 of the CBA obliges the employer to issue uniforms but makes no provision for cash compensation, and no loss was articulated

Reasoning

The CBA covered all employees without distinguishing who should wear uniform. Where uniform was not issued, the employee was not required to purchase one, so no loss arose. The claimants did not articulate what damage occurred from non-issuance, rendering the quantification baseless.

p. 5
04

Reliance on the Pensions (Amendment) Bill 2003 and parallel court decisions

Holding

Reliance misplaced - the claimants relied on a Bill, not a statute, and no corresponding remedy was sought; prior decisions by colleagues in other suits were on different foundations

Reasoning

The court held that the claimants' reference to the Pensions (Amendment) Bill 2003 was not to a statute, and no remedy was sought for its alleged breach. Retirement benefits for former local authority employees are governed by applicable statutes and clearance procedures. Judgments in Nakuru CMCC No.2728B of 2008 and Judicial Review No.29 of 2012 concerned different matters and could not ground the claims here.

p. 5

Legal principles established

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  • A claim to salary under a CBA retention clause requires proof of a temporary contract or actual service rendered; pay cannot be claimed for work not done
  • Overtime under the CBA is payable only where specifically authorised in writing by the head of department
  • Judgments in other suits by different claimants cannot form the basis of evidence for benefits not provided for in the applicable employment terms or CBA

Court orders

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  1. 1.The claims made lack basis and are dismissed
  2. 2.Each party shall bear own costs

Authorities

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Legislation

  • Pensions (Amendment) Bill2003/2009
  • Pensions Actnot specified
  • Retirement Benefits Actnot specified
  • NSSF (National Social Security Fund)not specified

Cases cited (4)

  • Kenya Union of Printing Publishing Paper Manufacturers & Allied Workers versus Highland Paper Mills Limited
    Cause No.93 of 2013
  • James Kariuki Gikonyo & others versus Municipal Council of Nakuru
    Nakuru CMCC No.2728B of 2008
  • Republic versus Municipal Council of Nakuru & Harrison Nyangala Kataka & 5 others
    Nakuru Judicial Review No.29 of 2012
  • Peter Mbuthia Gitau versus Kenya Revenue Authority
    [2016] eKLR
Jurisdiction invoked
Transfer from the High Court to the Employment and Labour Relations Court (Cause No.185 of 2013, formerly Nakuru High Court Civil Suit No.217 of 2005)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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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, "Lawrence O Moseti & 22 others v County Government of Nakuru [2018] KEELRC 77 (KLR)", Case Analysis (2018). Cause No. 185 of 2013 (formerly Nakuru High Court Civil Suit No. 217 of 2005). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/77/eng@2018-11-22

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