John Wachira Gikonyo & 9 others v County Government of Laikipia [2018] KEELRC 175 (KLR)
The bottom line
#The court upheld retirement at 60 using a deemed 31st December birthday rule, dismissing most claims but awarding pay for days worked past retirement.
What this practically means
#Executive summary
#Key legal issues
#Validity of the retirement notices dated 16th January 2014
The notices were lawful because the claimants attained 60 years on 31st December 2013 (anniversary deemed 31st December for inconclusive dates of birth), but not procedural because the CBA required 6 months' advance notice
The CBA clause 29 provided retirement at 60 with 6 months' notice, and where age documents are inconclusive the birthday anniversary is deemed 31st December. With year of birth 1954, the claimants attained 60 on 31st December 2013, so retirement effective that date was lawful. However, the notice found them at work in January 2014, not 6 months in advance, so the time not covered by notice should be paid for.
Entitlement to salary, leave and emoluments for 2014
No salary due for 2014 save for the 16 days worked in January 2014; no leave, off days or allowances accrue after the retirement date
Having found the retirement date was 31st December 2013 and that no claimant worked after the notice of 16th January 2014, the court held no salary for 2014 was due. Only compensation for time actually worked beyond retirement age (16 days in January 2014) was awardable. Leave and allowances cannot accrue to a retired officer not at work.
Entitlement to gratuity under the CBA and Legal Notice No.112 of 2008
Gratuity claim fails as claimants were covered by regulated provident funds (LAP FUND/NSSF) whose rules govern payment; respondent's role limited to clearance
Clause 42 of the CBA and the Gazette Notice direct gratuity to beneficiaries of provident/superannuation funds. The claimants' payment statements showed registration with LAP FUND and NSSF. These funds are regulated and managed outside the employer, and no deduction or remittance failure was alleged, so the employer owed only clearance for access to the funds.
Salary arrears for 1993, 2002, 2005 and 2010
Not payable: such claims belong to the union collectively and are in any event time-barred under section 90 of the Employment Act
Each CBA covers a term and once a new CBA is registered terms are renewed; the union, not individual members, is the entity to pursue arrears under the collective instrument. Further, with employment ending 16th January 2014 and suit filed 11th April 2014, claims relating to 1993–2010 are lost to limitation by operation of section 90 of the Employment Act, 2007.
Legal principles established
#- Where employment is regulated by a CBA, the court enforces it in its terms unless there is proof to the contrary
- Where an employee's date of birth is inconclusive and only the year of birth is known, the birthday anniversary is deemed 31st December under the CBA, so the employee attains 60 on 31st December of the year they turn 60
- Individual employees cannot claim CBA salary arrears outside the trade union that negotiated the CBA
- Stale CBA arrears claims are defeated by limitation under section 90 of the Employment Act
Court orders
#- 1.Claims dismissed in their entirety save for wages due for the period ending 16th January, 2014, to be assessed at the shop floor
- 2.Each party shall meet own costs
- Jurisdiction invoked
- Employment and labour relations jurisdiction of the Employment and Labour Relations Court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "John Wachira Gikonyo & 9 others v County Government of Laikipia [2018] KEELRC 175 (KLR)", Case Analysis (2018). Cause No. 96 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/175/eng@2018-12-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.