Peterkeen Mwiu Kimweli & 21 others v National Social Security Fund Board of Trustees [2018] KEELRC 184 (KLR)
The bottom line
#A Kenyan court let NSSF proceed with its job evaluation but warned the employer it must act lawfully and cannot punish workers for filing suit.
What this practically means
#Executive summary
#Key legal issues
#Res judicata
The plea of res judicata fails because the earlier cited Cause No. 1796 of 2011 involves a different claimant, the orders sought in it were not set out, its current status was not articulated, and a court search revealed no ruling or judgment in it
The respondent relied on Bernard Mugo Ndegwa and John Florence Maritime on the ingredients of res judicata: substantially the same issue, same parties litigating under the same title, and a competent court that determined the matter finally. The respondent did not establish these ingredients - the parties differ, the earlier claim's orders were undisclosed, and no determination was found. Further, Grounds of Opposition without a Replying Affidavit deprived the court of material particulars.
Interim protective orders against a new job evaluation
The orders sought shall not issue as framed; the respondent may proceed with the job evaluation within its mandate and in adherence to the law and the claimants' terms and conditions of employment, without disadvantaging them for filing suit
The court held that claimants still in employment are secure, and the employer has managerial prerogative to manage its human capital within the confines of the law. A job evaluation should ideally be consultative, with fairness and equity considerations. If an evaluation targets specific employees for having filed suit, a remedy exists under section 46 of the Employment Act, 2007.
Compliance with the ruling of 15th May 2018
The claimants filed the Amended Statement of Claim with Verifying Affidavit, Authority to sue, List of Witnesses and Witness Statement on 15th October 2018, but must serve these on the respondent with time running under Rule 11
The court noted the amended pleadings and accompanying documents were filed on 15th October 2018. If not served on the respondent, Rule 11 of the ELRC (Procedure) Rules 2016 applies and time is ticking; compliance should be effected. The court then directed service and reply, with hearing directions to issue on a priority basis.
Legal principles established
#- A respondent who files Grounds of Opposition instead of a Replying Affidavit denies the court material particulars needed to evaluate its objections
- Res judicata cannot succeed where the earlier suit involves different parties, the orders sought are not set out, and the court finds no record of any ruling or judgment in the earlier matter
- An employer retains the prerogative to manage its human capital, including conducting job evaluations, provided this is done consultatively and within the confines of the law
Court orders
#- 1.The orders sought in the application dated 11th October 2018 shall not issue as framed
- 2.The respondent is directed to address the new call for job evaluation within its mandate and in adherence to the law on employment and labour relations, the NSSF Act, the operational framework in place, subject to compliance with the terms and conditions of employment for each claimant and without placing them at a disadvantage for filing the claims
- 3.The court drew the respondent's attention to the provisions of section 46(h) of the Employment Act, 2007
- 4.Upon service of the Amended Memorandum of Claim on the respondent, the respondent to file a reply, and the court to issue hearing directions on a priority basis
- Jurisdiction invoked
- Articles 27, 41 and 50 of the Constitution, 2010; sections 5(3)(b) and 48(h) of the Employment Act, 2007; Rule 17(1) and (3) of the Employment and Labour Relations Court (Procedure) Rules, 2016
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Peterkeen Mwiu Kimweli & 21 others v National Social Security Fund Board of Trustees [2018] KEELRC 184 (KLR)", Case Analysis (2018). Cause No 212 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/184/eng@2018-12-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.