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ELRCPartially AllowedELRC Cause (formerly Civil Case 200 of 2004)· [2020] KEELRC 1524 (KLR)

Cheruiyot Chelule Arap & 15 others v Regional Centre for Services in Surveying Mapping and Remote Sensing [2020] KEELRC 1524 (KLR)

Employment and Labour Relations Court
21 February 2020
MOMaureen Onyango
2,442 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Sixteen former RCSSMRS employees won only admitted provident fund interest; the court held they were paid everything else and organisations cannot hide behind immunity in staff disputes.

What this practically means

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Executive summary

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Sixteen former employees of the Regional Centre for Services in Surveying and Mapping (RCSSMRS), an inter-governmental organization established in Nairobi in 1975, sued for US$1,506,403.74 (Kshs.115,993,087.98) with interest, alleging that their 2000 redundancy-related terminal dues were never fully paid. The Respondent denied the claim, asserting it paid all terminal benefits totalling about Kshs.43 million in March 2003 through the Ministry of Environment and Natural Resources, and pleaded immunity under section 9 of the Privileges and Immunities Act, relying on Karen Njeri Kandie v Alassane Ba. The court framed three issues: immunity, entitlement to the sum claimed, and the relief sought. On immunity, the court held the matter res judicata, adopting the High Court's ruling (Okwengu J) that section 9 immunity is qualified and does not extend to private employment disputes, and that the Respondent, having not appealed, was estopped; the court applied Kenya Commercial Bank v Benjoh Amalgamated and Henderson v Henderson. On quantum, the court found the claimants received full terminal benefits on 27 March 2003, including gratuity, salary arrears and severance, with only interest on provident fund outstanding, which the Respondent admitted at US$169,835 calculated at 6.33%. Severance pay under section 16A of the repealed Employment Act was refused as unpleaded and unavailable since contracts expired rather than being terminated by redundancy. The discounted-salary claim failed as untabulated, unpleaded, acquiesced in and largely statute-barred. The suit was dismissed except for the admitted portion, payable in US$ at current exchange rates, with each party bearing its own costs.

Key legal issues

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01

Whether the Respondent is immune from these proceedings

Holding

The issue is res judicata; the High Court had ruled the qualified immunity under section 9 does not cover private employment disputes and the Respondent is estopped.

Reasoning

The High Court (Okwengu J, 21 October 2018) held the qualified-immunity concept applies in Kenya, section 9 immunity is not absolute, and employment disputes do not attract immunity. The respondent did not appeal and had earlier opted to settle a similar claim, so it is estopped. Following KCB v Benjoh Amalgamated, the doctrine bars re-litigating points that belonged to the subject of litigation.

p. 3
02

Whether the Claimants are entitled to US$1,506,403.74 and severance pay

Holding

Claimants were paid full terminal benefits except interest on provident fund, which the Respondent admitted and is willing to pay at 6.33% (US$169,835); severance was not pleaded and was unavailable.

Reasoning

The 34th Governing Council resolved terminal benefits be calculated to 31 December 2000; the 37th meeting recalculated interest using 6.33% instead of 37%. All 16 claimants signed for terminal dues paid on 27 March 2003 including gratuity and salary arrears. Severance was never pleaded, and the claimants' contracts expired rather than being terminated by redundancy. Claims not tabulated or pleaded, or on which claimants acquiesced, cannot be granted.

p. 4

Legal principles established

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  • A court cannot reopen an issue of immunity already determined by a court of competent jurisdiction and not appealed against - res judicata
  • Parties are bound by their pleadings and courts cannot grant relief not pleaded
  • The immunity under section 9 of the Privileges and Immunities Act is qualified, not absolute, and does not cover private domestic employment disputes

Court orders

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  1. 1.The claim by the claimants is dismissed with the exception of the admitted portion of the claim (interest on provident fund tabulated at US$ 169,835)
  2. 2.The admitted portion shall be paid as tabulated in US$ but based on current exchange rates as at the date of judgment
  3. 3.Each party shall bear its costs

Authorities

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Legislation

  • Privileges and Immunities Actsection 9
  • Privileges and Immunities (Regional Centre for Services in Surveying and Mapping) Order 1985
  • Employment Act (Cap 226) (repealed)section 16A
  • Staff Regulations of the RespondentArticle 25

Cases cited (3)

  • Karen Njeri Kandie v Alassane Ba & Another
    [2015] eKLR
  • Kenya Commercial Bank Limited v Benjoh Amalgamated Limited
    [2017] eKLR
  • Henderson v Henderson
    (1843) 67 ER 313
Jurisdiction invoked
Employment and labour relations jurisdiction of the ELRC over the employment dispute; suit transferred from the High Court (Civil Case 200 of 2004)

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, "Cheruiyot Chelule Arap & 15 others v Regional Centre for Services in Surveying Mapping and Remote Sensing [2020] KEELRC 1524 (KLR)", Case Analysis (2020). ELRC Cause (formerly Civil Case 200 of 2004). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1524/eng@2020-02-21

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