George Ochieng Ododa & 173 others v Kenya Railways Corporation & another [2021] KEELRC 1085 (KLR)
The bottom line
#Retrenched Kenya Railways workers won their 20-year fight for unpaid terminal dues, and can stay in company houses until fully paid.
What this practically means
#Executive summary
#Key legal issues
#Res judicata (Nakuru HCCC No. 397 of 1998)
The suit is not res judicata; the prayers in the Nakuru case were substantially different and the 2nd Respondent was not a party there
Although the two suits concerned the retrenchment package, the Nakuru plaintiffs sought different orders (overtime, night shift allowances, auxiliary deductions, eviction). Only issues actually determined there could be res judicata. The 2nd Respondent was not a party to the Nakuru case, and the 1st Respondent was joined in this suit only in 2018, after the Nakuru judgment. The court agreed with Ndolo J's 2016 ruling.
Limitation of actions
The claim is not time barred; unpaid terminal dues constitute a continuing injury
Failure to pay the full terminal benefits was not disputed and amounts to a continuing injury, so time runs only when the dues are paid. Letters from the Permanent Secretary and the 1st Respondent acknowledged the pending dues and undertook to resolve them, including commitment to meet rent. Section 90 of the Employment Act and Section 4(1) of the Limitation of Actions Act were considered.
Jurisdiction over pension
The claim is essentially one on computation of terminal dues and enforcement of collective agreements, within the ELRC's jurisdiction, not a pension matter for the Retirement Benefits Tribunal
The court noted the Court of Appeal in Staff Pension Fund declined to settle the statutory jurisdiction question as moot. The claim here questions whether pension/gratuity tabulations took into account the full salary increment under the CJC Agreement, and the ELRC has jurisdiction under Section 12 of its Act to register and enforce collective agreements.
Section 87 Kenya Railways Corporation Act limitation
The claim is not bad in law; the shorter limitation under the Kenya Railways Corporation Act cannot apply
Relying on Joseph Sebastian Ringo v Kenya Railways Corporation, the court held the primary legislation is the Employment Act and applying a shorter period would discriminate against the 1st Respondent's employees. The claim is a continuing injury acknowledged over the years.
Entitlement to terminal dues and retention of houses
Claimants proved they were not paid full terminal benefits and are entitled to the balance computed on the 70%/45% increments; they retain the houses pending full payment
RW1 contradicted himself by admitting partial payment (20%/30% against 45%/70%). The unregistered November 1997 CJC agreement terms were incorporated into contracts and partially implemented, so enforceable. The transfer of properties to the 2nd Respondent occurred despite the CBA obligation, and the Claimants have an enforceable property lien; the 1st Respondent undertook to pay rent for unsettled retrenchees.
Legal principles established
#- Res judicata applies only to issues that were directly and substantially in issue and determined in the former suit between the same parties
- Non-payment of accrued employment dues constitutes a continuing injury for limitation purposes
- The ELRC has jurisdiction to determine claims questioning the computation of terminal dues flowing from collective agreements
- A shorter statutory limitation period cannot be applied to employment claims so as to discriminate against employees
Court orders
#- 1.A declaration/finding that the Claimants proved they were not paid full terminal benefits under the CBA dated 24th November 1997 and CJC Agreement dated 10th November 1997, and are owed salary arrears and resultant pension and/or gratuity based on the reviewed salary
- 2.The Claimants are entitled to retain the 2nd Respondent's houses pending payment of full terminal benefits; the 2nd Respondent cannot evict them until they are fully paid by the 1st Respondent
- 3.The 1st Respondent is directed to file its tabulation of terminal dues within 30 days to enable the Court issue final judgment on the amount payable
- 4.No order for costs
- Jurisdiction invoked
- Section 12 of the Employment and Labour Relations Court Act (dispute emanating from an employment relationship)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "George Ochieng Ododa & 173 others v Kenya Railways Corporation & another [2021] KEELRC 1085 (KLR)", Case Analysis (2021). HCCC No. 230 of 2009 (referred to ELRC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1085/eng@2021-08-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.