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ELRCPartially AllowedNot stated in the judgment (Statement of Claim filed 28th July 2020)· [2021] KEELRC 1578 (KLR)

Kenya County Government Workers Union v Nairobi City County Government & another [2021] KEELRC 1578 (KLR)

Employment and Labour Relations Court
17 June 2021
MOMaureen Onyango
5,157 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that retiring an employee who acquired a disability at age 60 instead of 65 was unlawful, awarding him 12 months' salary.

What this practically means

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Executive summary

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The Claimant, a registered trade union, sued on behalf of its member Jean Damascene Kaberuka (the Grievant), a Nurse with Nairobi City County Government since 1998, who was retired mandatorily at 60 by letter dated 6th December 2017 effective 31st December 2018. The Grievant was shot by gangsters on 25th August 2017, suffered irreversible visual impairment, and was certified as a person with disability on 19th November 2018. The union sought a declaration that the retirement was wrongful, quashing of the retirement letter, reinstatement, or alternatively damages of about Kshs.4.49 million, plus costs. The Respondents raised a preliminary objection on the union's locus standi, denied being bound by the 2012 CBA executed before their existence, and argued that the Grievant's disability arose after engagement. The court held that the union had locus standi following the Court of Appeal decision in Modern Soap Factory; that failure to refer the dispute to conciliation was not fatal given Article 159 and section 20(1) of the ELRC Act; that county governments are bound by CBAs of defunct local authorities; that a disability certificate acquired during employment entitled the Grievant to retire at 65 under the Persons with Disabilities Act, the 2012 Government Circular and clause 29(b) of the CBA; and that the retirement was therefore wrongful, unfair and unlawful. Reinstatement was refused as the exceptional threshold was not met, and the court awarded 12 months' salary (Kshs.879,490.20), costs and interest from the date of judgment.

Key legal issues

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01

Whether the Claimant trade union has locus standi

Holding

The Claimant has locus standi to sue on behalf of its member

Reasoning

Relying on the Court of Appeal decision in Modern Soap Factory v Kenya Shoe and Leather Workers Union, the court held that a registered union whose constitution empowers it may institute claims for its members; a recognition agreement is distinct from representation in court. The respondents did not dispute the Grievant's membership.

p. 5
02

Whether failure to report the dispute for conciliation was fatal

Holding

Not fatal; the court eschews technicality

Reasoning

Sections 62-72 of the Labour Relations Act prescribe conciliation, but the claim was never referred to a conciliator. However, Article 159 of the Constitution and section 20(1) of the ELRC Act require the court to act without undue regard to technicalities, and section 15(4) allowed the respondents to seek a referral at any stage; no prejudice was occasioned.

p. 5
03

Whether retirement at 60 instead of 65 was wrongful, unfair and unlawful

Holding

Yes; the Grievant was a registered person with disability entitled to retire at 65

Reasoning

It was not disputed that the Grievant held a disability certificate issued before the retirement date. Following Margaret Martha Byama, registration may occur at any stage since disability can be acquired later in life. County governments are bound by the predecessor local authority's CBA providing 65 years for persons with disabilities, and a 2012 Government Circular raised public service retirement age for such persons to 65. The respondents were aware yet retired him at 60.

p. 6
04

Whether reinstatement should be granted

Holding

Reinstatement refused; 12 months' salary compensation awarded instead

Reasoning

Reinstatement, being an order of specific performance, is granted only in exceptional circumstances under section 49 of the Employment Act. The Grievant was already 62 with only three years to the extended retirement age, and his own extension request of two years had lapsed, so his reasonable expectation did not support reinstatement. Given his lengthy service, 12 months' salary was awarded.

p. 7

Legal principles established

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  • A registered trade union whose constitution so empowers has locus standi to institute a claim on behalf of its members; a recognition agreement is not the basis of such representation
  • County Governments inherited the human resources and obligations, including CBAs, of defunct local authorities
  • A person may acquire disability during employment and qualify for the extended retirement age of 65; no statutory timeline restricts registration
  • Reinstatement is an exceptional remedy akin to specific performance
  • Failure to refer a dispute to conciliation before filing is not fatal where no prejudice is occasioned

Court orders

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  1. 1.Declaration that the mandatory retirement of the Grievant was wrongful, unfair and unlawful (implied by finding)
  2. 2.Compensation to the Grievant equivalent to 12 months' salary of Kshs.879,490.20
  3. 3.Costs of the suit to the Claimant
  4. 4.Interest on the award from the date of judgment

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 41, 22(2), 159, 159(2)(d), 258(2), 260, 48
  • Labour Relations Act, 2007Sections 2, 58, 62(3), 67(1)(a), 69, 74
  • Persons with Disabilities ActSection 15(6)
  • Urban Areas and Cities ActSection 58
  • Employment ActSections 49(3)(a), 49(4)(a)-(m), 50
  • Employment and Labour Relations Court ActSections 15(4), 20(1)
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Persons with Disabilities (Access to Employment, Services and Facilities) Regulations, 2009Regulation 12
  • Human Resource Policies and Procedures Manual for Public ServiceClause D.21

Cases cited (5)

  • Margaret Martha Byama v Alice A. Otwala & 3 Others
    [2016] eKLR
  • Kenya National Private Security Workers Union v Security Guards Services Limited
    [2020] eKLR
  • Kenya Shoe & Workers Union v Modern Soap Factory Ltd
    [2017] eKLR
  • Modern Soap Factory v Kenya Shoe and Leather workers Union
    Civil Appeal No. 37 of 2019
  • Kenya Power & Lighting Company Limited v Aggrey Lukorito Wasike
    [2017] eKLR
Jurisdiction invoked
Employment and Labour Relations Court Act (Articles 41 and 162(2) of the Constitution invoked; Article 159, 48 referred to in delivery order)

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, "Kenya County Government Workers Union v Nairobi City County Government & another [2021] KEELRC 1578 (KLR)", Case Analysis (2021). Not stated in the judgment (Statement of Claim filed 28th July 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1578/eng@2021-06-17

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