Chrisopher Warui v Office of the Auditor General & another [2021] KEELRC 1366 (KLR)
The bottom line
#Kenya's Employment Court struck out a retired civil servant's pension claim, ruling pension disputes belong elsewhere and must be filed within three years.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the ELRC over pension disputes involving former employees
The court held that a claim by a retired civil servant for pension benefits is not within the ELRC's jurisdiction, the employer-employee relationship having ended on retirement, per the binding Supreme Court decision in Albert Chaurembo Mumba
The court relied on the Supreme Court's holding that once a member leaves employment and becomes a pensioner, the relationship becomes one of trustee and beneficiaries governed by the Retirement Benefits Act and trust law, not employment law, and that the ELRC Act confers no jurisdiction over such disputes. The court considered the claimant's assertion that his claim was about breach of the employment contract (non-implementation of an SRC salary increment) but found the claim to be in substance one for pension dues.
Limitation under Section 90 of the Employment Act
The claim was statute-barred, having been filed more than three years after the cause of action arose on the claimant's retirement on 20th July 2015, with no continuing injury to bring it within the proviso
The cause of action arose on retirement on 20th July 2015; the suit was filed on 15th October 2020, over five years later. The court found no justification for the delay and rejected the claimant's argument that ongoing underpayment of monthly pension constituted a continuing injury. Section 90 is in mandatory terms and admits no extension of time.
Whether the claim was an abuse of process warranting striking out
The suit was found devoid of merit and incompetent and was struck out
Both the jurisdictional defect and the statutory bar rendered the suit incompetent. The court struck it out rather than dismissing it, exercising its power on the preliminary objections.
Legal principles established
#- A pensioner's dispute with the trustees of a pension scheme is outside the jurisdiction of the Employment and Labour Relations Court, the relationship being one of trustee and beneficiary governed by the Retirement Benefits Act and trust law
- Claims based on the Employment Act or a contract of service must be instituted within three years, and there is no discretion to extend time under Section 90 of the Employment Act
Court orders
#- 1.The suit is struck out
- 2.Each party to bear their own costs
- Jurisdiction invoked
- Section 12 of the Employment and Labour Relations Court Act (in issue whether the Court has jurisdiction over pension-related claims); Section 90 of the Employment Act, 2007 on limitation
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "Chrisopher Warui v Office of the Auditor General & another [2021] KEELRC 1366 (KLR)", Case Analysis (2021). Not stated in the judgment excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1366/eng@2021-06-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.