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ELRCDismissedCause No. 1613 of 2013· [2018] KEELRC 2217 (KLR)

Joseph Moilo v University of Nairobi [2018] KEELRC 2217 (KLR)

Employment and Labour Relations Court
6 March 2018
HWHellen S. Wasilwa
1,600 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Employment Court dismissed a lecturer's retirement dispute because he waited over six years to sue and skipped mandatory conciliation.

What this practically means

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Executive summary

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The Claimant, engaged by the University of Nairobi in January 1972 as a Junior Technician and eventually promoted to Principal Technologist, sued claiming damages for unlawful retirement. He asserted that memoranda from the Vice Chancellor's office of 4 November 1997 and 18 January 2005 equated his post with Senior Lecturer and fixed the retirement age for teaching and academic staff at 70 years, so his retirement on 6 October 2007 was ten years premature. The Respondent denied this, contending the retirement age for non-teaching staff had been harmonized to 60 years by a circular of 14 July 2002 aligning terms with the Retirement Benefits Act, that the Claimant accepted the retirement notice without objection, and that the equivalence memo applied only for VAT and excise duty purposes. On the evidence, the Court noted the Claimant was notified of retirement in 2006 and exited on 6 October 2007 but filed suit on 7 October 2013, more than six years later, contrary to Cap 22. The Court further found that under Section 14(9)(e) of the repealed Trade Dispute Act it could not entertain the dispute absent a Labour Commissioner's certificate evidencing exhaustion of conciliation machinery, and no such process had occurred. The Court therefore held the case both time barred and improperly before it, dismissed the claim, and directed each party to bear its own costs. The merits of the retirement-age dispute were not determined.

Key legal issues

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01

Limitation of actions in employment claims

Holding

The claim filed on 7 October 2013, over six years after retirement on 6 October 2007, was time barred under Cap 22

Reasoning

The Claimant was notified of retirement in 2006 and exited service on 6 October 2007 but never complained of the unlawfulness of that action until filing suit on 7 October 2013. The delay of more than six years exceeded the limitation period under Cap 22, rendering the claim time barred.

p. 2
02

Exhaustion of conciliation machinery under the Trade Dispute Act

Holding

No conciliation process occurred and no Labour Commissioner's certificate was produced, so the matter was improperly before the Court

Reasoning

Section 14(9)(e) of the repealed Trade Dispute Act barred the Court from taking cognisance of a trade dispute unless it received a certificate signed by the Labour Commissioner stating that all available machinery for voluntary settlement had been exhausted. In this case there was no indication that the conciliation process ever occurred.

p. 3
03

Retirement age of the Claimant

Holding

The Court found the retirement age was 60 years per the Respondent's terms, and the Claimant was retired as Principal Technologist

Reasoning

The Respondent's Preview of terms dated 6 October 1989 fixed the retirement age at 60 years. The Claimant contended his post was equivalent to Senior Lecturer whose retirement age was 70, but the Respondent submitted the equivalence memo related only to VAT and excise duty exemption and that the Claimant fell under non-teaching staff harmonized to 60 years. The Court did not reach the merits given the limitation and jurisdiction findings.

p. 2

Legal principles established

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  • A claim filed more than six years after the cause of action arose is time barred under the Limitation of Actions Act (Cap 22)
  • The Court cannot take cognisance of a trade dispute without a certificate of the Labour Commissioner confirming exhaustion of conciliation machinery

Court orders

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  1. 1.The claim is dismissed
  2. 2.Each party to bear its own costs

Authorities

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Legislation

  • Retirement Benefits Act1997
  • Evidence ActSection 107
  • Trade Dispute Act (Repealed)Section 14(9)(e)
  • Limitation of Actions ActCap 22

Cases cited (5)

  • John Danson Kibinda Vs University of Nairobi
    (2011) eKLR
  • Rift Valley Textiles Limited Vs Edward Onyango Oganda
    Civil Appeal No. 27 of 1992
  • Elizabeth Wakanyi Kibe Vs Telcom Kenya Limited
    (2014) eKLR
  • Engineer Francis N. Gachuri vs Energy Regulatory Commission
    Industrial Cause No. 203 of 2011
  • Alfred Githinji Vs. Mumias Sugar Company Limited
    Civil Appeal No. 194 of 1991
Jurisdiction invoked
Trade Dispute Act (Repealed), Section 14(9)(e)

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, "Joseph Moilo v University of Nairobi [2018] KEELRC 2217 (KLR)", Case Analysis (2018). Cause No. 1613 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2217/eng@2018-03-06

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