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ELRCPartially AllowedCause No 967 of 2010· [2018] KEELRC 219 (KLR)

Samuel Ngovu & 11 others v Tana & Athi River Development Authority & another [2018] KEELRC 219 (KLR)

Employment and Labour Relations Court of Kenya
20 December 2018
3,131 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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Twelve former TARDA workers won redundancy pay after the court found their employer broke Kenya's water-sector transfer rules.

What this practically means

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Executive summary

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Twelve claimants, formerly employees of the Tana & Athi River Development Authority (TARDA) at its Kiambere Mwingi Water Supply Project, sued after their services were transferred in 2009 to the Tanathi Water Services Board and subsequently placed under the Kiambere Mwingi Water and Sanitation Company. They sought a declaration that they were redundant and payment of redundancy dues, alternatively redeployment to TARDA, plus salary arrears and costs. TARDA defended the claim, asserting the transfers followed the framework of the Water Act, 2002 and Legal Notice No. 101 of 2005; the 2nd Respondent did not file a response and default judgment was entered against it. The court framed three issues: compliance with the implied terms of the Water Act on transfer, entitlement to a redundancy declaration and dues, and remedies. Applying Rule 5(2) of the Water (Plan of Transfer of Water Services) Rules, 2005, the court held the Claimants should have been deemed on secondment for three years, after which they would enter fresh contracts or be redeployed. By transferring rather than seconding them, TARDA breached the statute, creating a redundancy situation. The court found for the Claimants on the redundancy claim, awarding each Claimant one month's salary as notice and 15 days' pay per year worked, with individually quantified awards payable by the 1st Respondent, together with costs and interest from the date of judgment. The claim succeeded in substance; redeployment was not granted.

Key legal issues

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01

Whether the transfer of the Claimants' services to the 2nd Respondent complied with the Water Act, 2002 and the Water (Plan of Transfer of Water Services) Rules, 2005

Holding

The 1st Respondent breached the express terms of the Water Act and the Rules by transferring rather than seconding the Claimants; the law envisaged secondment for three years, after which the employees would enter written contracts or be redeployed.

Reasoning

The court found that Rule 5(2) of the 2005 Rules deemed Ministry officers engaged in water services to be on secondment to water services boards for three years, after which they would sign contracts under section 54(3) or be redeployed. Secondment means temporary transfer with the original employer remaining employer. By transferring rather than seconding the Claimants, the 1st Respondent acted in breach of the statutory framework.

p. 4
02

Whether the Claimants ought to be declared redundant and paid redundancy dues

Holding

The situation amounted to a redundancy since the 1st Respondent no longer required the Claimants' services but did not declare them redundant; the claim for redundancy dues was justified.

Reasoning

Because the 1st Respondent should have terminated the Claimants' services and had them sign fresh contracts with the 2nd Respondent, the court viewed the circumstances as a redundancy situation under section 40 of the Employment Act, 2007. The 1st Respondent failed to do so, entitling the Claimants to one month's salary in lieu of notice and 15 days' pay per completed year of service.

p. 4

Legal principles established

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  • Under Rule 5(2) of the Water (Plan of Transfer of Water Services) Rules, 2005, officers engaged in the provision of water services during the transitional period are deemed to be on secondment to water services boards for three years, after which they either enter written contracts with the boards or are redeployed in the Public Service.
  • Where the law envisaged a secondment and not a transfer, an employer who transfers employees' services must terminate their employment and pay them off; doing otherwise is a breach of the statute and gives rise to a redundancy situation entitling employees to redundancy dues.

Court orders

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  1. 1.Each Claimant be paid an equivalent of 1 month's salary as notice and 15 days salary for each year worked, with individual awards totalling Kshs.332,321; Kshs.308,600; Kshs.128,772; Kshs.155,288; Kshs.128,772; Kshs.206,682; Kshs.158,488; Kshs.69,507; Kshs.68,382; Kshs.154,995; Kshs.60,784; and Kshs.392,743 for the 1st to 12th Claimants respectively, to be paid by the 1st Respondent as if the Claimants had been declared redundant
  2. 2.The 1st Respondent to pay costs of the suit plus interest with effect from the date of the judgment

Authorities

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Legislation

  • Water ActNo. 8 of 2002, Rule 5(1) and 5(2) of the Water (Plan of Transfer of Water Services) Rules, 2005; section 54(3)
  • Employment ActSection 40

Cases cited (1)

  • Mary Nyangasi Ratemo & 9 others v Kenya Police Staff Sacco Limited & another
    [2013] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 and the Labour Relations Act in respect of employment disputes (Cause No 967 of 2010)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Samuel Ngovu & 11 others v Tana & Athi River Development Authority & another [2018] KEELRC 219 (KLR)", Case Analysis (2018). Cause No 967 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/219/eng@2018-12-20

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