Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedCause No. 96 of 2014· [2018] KEELRC 175 (KLR)

John Wachira Gikonyo & 9 others v County Government of Laikipia [2018] KEELRC 175 (KLR)

Employment and Labour Relations Court of Kenya
6 December 2018
3,488 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

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

#
Ten former employees of the County Government of Laikipia (formerly Municipal Council of Nyahururu), all born in 1954 and members of the Kenya County Government Workers Union, sued claiming they were prematurely retired by a notice dated 16th January 2014 effective 31st December 2013, a year before their 60th birthdays on 31st December 2014. They sought declarations that the notices were illegal, salary for 2014, six months' notice pay, leave and off-day pay, and gratuity under the CBA and Legal Notice No.112 of 5th September 2008. The respondent defended the retirements: under the CBA, where an employee's age documents are inconclusive and only the birth year is known, the birthday anniversary is deemed 31st December, so the claimants attained 60 on 31st December 2013. It alleged the claimants fabricated belated birth certificates to extend service, and that gratuity was payable only through LAP FUND and NSSF. The court, Mbaru J, applied CBA clause 29 and held the retirement date was 31st December 2013, making the notices lawful but non-procedural for want of the 6 months' advance notice; the claimants were to be paid for the 16 days worked in January 2014, with the one month pay in lieu of notice in the retirement letter treated as adequate recompense. No 2014 salary, leave or allowances accrued post-retirement. The gratuity claim failed because the claimants were covered by regulated provident funds, and the salary arrears claims (1993, 2002, 2005, 2010) failed as union matters and as time-barred under section 90 of the Employment Act. The claims were dismissed in their entirety save for wages to 16th January 2014, each party bearing own costs.

Key legal issues

#
01

Validity of the retirement notices dated 16th January 2014

Holding

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

Reasoning

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.

p. 4
02

Entitlement to salary, leave and emoluments for 2014

Holding

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

Reasoning

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.

p. 4
03

Entitlement to gratuity under the CBA and Legal Notice No.112 of 2008

Holding

Gratuity claim fails as claimants were covered by regulated provident funds (LAP FUND/NSSF) whose rules govern payment; respondent's role limited to clearance

Reasoning

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.

p. 5
04

Salary arrears for 1993, 2002, 2005 and 2010

Holding

Not payable: such claims belong to the union collectively and are in any event time-barred under section 90 of the Employment Act

Reasoning

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.

p. 5

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. 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. 2.Each party shall meet own costs

Authorities

#

Legislation

  • Legal Notice No.112 of 5th September, 2008 (Gazette Notice)Gratuity rule for members of provident/superannuation funds
  • Employment ActSection 90
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.