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ELRCPartially AllowedCause No. 803 of 2013 (Formerly Nairobi HCCC 398 of 2003)· [2020] KEELRC 251 (KLR)

Thomas M. Nguti & 196 others v Kenya Railways Corporation [2020] KEELRC 251 (KLR)

Employment and Labour Relations Court of Kenya
6 November 2020
1,657 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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197 former Kenya Railways workers won salary arrears and a 25% award back-pay, but their unfair dismissal claim failed.

What this practically means

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Executive summary

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This final judgment of the Employment and Labour Relations Court at Nairobi (Onyango J) concluded a long-running dispute by 197 former Kenya Railways employees, formerly locomotive drivers, following a judgment delivered on 12th August 2020 directing the parties to furnish the Personnel Regulations 1988 and the relevant CBA. The court traced the litigation history: on 26th September 2003 the High Court nullified the respondent's dismissal letter of 30th April 2003 and ordered implementation of the Industrial Court award in Cause No. 72 of 1995 and payment of salary arrears; on appeal, the Court of Appeal set aside the mandatory injunction orders, substituted suspension of the dismissal letter for nullification, and limited the life of the suspension to 12 months unless extended. Onyango J found the suspension was never extended, so the claimants' employment lapsed on 8th May 2010; unfair termination was therefore not a valid issue. On the award, RW1's evidence did not prove implementation - his salary-increase documents related to CBA reviews covering all unionisable staff, not the award specific to locomotive drivers - so the court found the 25% award for the period 1st January 1996 to 31st December 1997 was never implemented. The court ordered the respondent to tabulate and pay salary arrears from 30th April 2003 to 8th May 2010, inclusive of the 25% award, with interest at court rates from 8th May 2009 until payment in full, compliance to be confirmed on 16th December 2020, and awarded the claimants costs. Claims beyond 8th May 2010 and for unfair termination failed.

Key legal issues

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01

When the claimants' employment ended

Holding

The employment of all claimants is deemed to have subsisted until 8th May 2010, when the Court of Appeal's 12-month suspension of the dismissal letter lapsed

Reasoning

The High Court nullified the dismissal letters on 26th September 2003; the Court of Appeal on appeal set aside orders 1, 2 and 6, substituted suspension of the 30th April 2003 letter for nullification, and limited the life of orders 3, 4 and 5 (suspension) to 12 months. Since neither party sought extension, the employment ended by effluxion of that period. Consequently, fairness of termination was not a live issue.

02

Whether the Court Award in Industrial Court Cause No. 72 of 1995 was implemented

Holding

The Court Award, granting locomotive drivers a 25% salary increase for 1st January 1996 to 31st December 1997, was never implemented

Reasoning

RW1's evidence on salary increases related to periods before the award and to CBA reviews covering all unionisable employees, not the award specific to locomotive drivers. He contradicted himself, claiming implementation of an award yet to be delivered. No documents proved implementation of the gazetted award, so the claimants are entitled to the 25% increment over and above CBA increases.

p. 2
03

Whether the claimants were unfairly terminated

Holding

No finding of unfair termination; the employment ended by lapsing of the Court of Appeal orders, not by an unfair act of the respondent

Reasoning

The court held that it was for the respondent, as the party whose dismissal letter had been nullified and suspended, to lift the suspension or end the employment otherwise. Having failed to do so, the employments terminated by lapsing of the orders, which cannot be characterised as unfair termination by the respondent.

p. 2

Legal principles established

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  • An employee regarded as having forfeited appointment for absence without leave for more than seven continuous days under Section G13(e) of the Kenya Railways Personnel Regulations 1988 is deemed dismissed in accordance with those Regulations.
  • Where a dismissal letter is nullified and substituted with a time-limited suspension of the employment, the employment lapses upon expiry of that period rather than being unfairly terminated.
  • A party alleging non-implementation of a court award must prove implementation; absence of evidence of implementation supports a finding of non-implementation.

Court orders

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  1. 1.Finding that the respondent did not implement the Court Award in Cause No. 72 of 1995
  2. 2.Declaration that the claimants are entitled to salary arrears of 25% loaded on their salaries as at 1st January 1996 in addition to any increase arising from CBA increments
  3. 3.Finding that the claimants are deemed to have been in employment up to 8th May 2010
  4. 4.Direction that the respondent tabulate and pay salary arrears for the claimants from 30th April 2003 to 8th May 2010, factoring in the Court Award in Cause No. 72 of 1995
  5. 5.Order that the respondent pay interest on the decretal sum at court rates from 8th May 2009 until payment in full
  6. 6.Direction that the respondent tabulate the amount payable and forward it to the Claimants' Counsel for approval within 30 days from the date of judgment
  7. 7.Mention on 16th December 2020 to confirm compliance
  8. 8.Respondent to pay claimants' costs of the suit
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Act over employment causes

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Thomas M. Nguti & 196 others v Kenya Railways Corporation [2020] KEELRC 251 (KLR)", Case Analysis (2020). Cause No. 803 of 2013 (Formerly Nairobi HCCC 398 of 2003). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/251/eng@2020-11-06

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