Monica A Otieno & 32 others v Jaramogi Oginga Odinga University of Science and Technology & another [2018] KEELRC 1552 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the suit withdrawn by erstwhile counsel without the claimants' authority could be reinstated
The withdrawal was set aside and the suit reinstated because the claimants were not consulted and were unaware of the withdrawal
The general rule is that acts of counsel bind the client, as provided by Order 9 Rule 1 of the Civil Procedure Rules and the Kinuthia Maina and KCB Specialised Engineering authorities. However, exceptions exist for fraud, misrepresentation, collusion or mistake (Westward Properties). The minutes of the claimants' meetings of 26th September and 3rd October 2015 showed they were seeking the status of the case and had no intention of withdrawing it, establishing mistake/absence of authority.
Whether the claim is statute barred under Section 90 of the Employment Act
The claim is not statute barred and is competently before the court
Section 90 bars actions based on or arising out of a contract of service after 3 years. The court held the claim is founded on the respondents' statutory obligation as current and former employers, not on the contract of service itself. Further, terminal benefits do not accrue until retirement, and the claimants were still in service at filing, so time had not begun to run.
Who between the 1st and 2nd respondents is liable for the claimants' pension/gratuity
Each respondent is liable for the periods during which the claimants served under it, with payment due at retirement
The Bondo University College Order, 2009 (Legal Notice No. 56) made the university college successor to Bondo TTC with automatic transfer of all rights, liabilities and assets. However, evidence of the Registrar showed Bondo TTC continued in existence, relocated, some staff voluntarily joined the university with fresh appointment letters, and no formal handing over of liabilities occurred. The court apportioned liability by reference to periods of service, taking into account the respondents' failure to address the employees' fate.
Legal principles established
#- Terminal benefits do not accrue until after retirement, so a claim for terminal benefits by in-service employees is not statute barred under Section 90 of the Employment Act
- A statutory claim arising out of the respondents' obligation as current/former employers is not based on or arising out of a contract of service within Section 90
- Acts of counsel bind the client, but orders of withdrawal of suit may be set aside for fraud, misrepresentation, collusion or mistake
- Where a withdrawal was made without authority, knowledge or consultation of the client, there is sufficient ground to reinstate the suit
Court orders
#- 1.The order withdrawing the claim dated 20th January 2015 is set aside and the claim is reinstated
- 2.Each of the respondents is to work out, in consultation with the claimants' counsel and representatives, the pension/gratuity of the claimants for the periods served under them
- 3.The pension/gratuity so computed shall become due and payable upon the claimants attaining retirement age
- Jurisdiction invoked
- Not expressly cited in the judgment; first-instance claim before the Employment and Labour Relations Court (Article 162(2)(a) jurisdiction implied, not invoked by name)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Monica A Otieno & 32 others v Jaramogi Oginga Odinga University of Science and Technology & another [2018] KEELRC 1552 (KLR)", Case Analysis (2018). Not stated in the judgment (application dated 4th November 2015 arising from a claim filed 8th December 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1552/eng@2018-07-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.