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ELRCAllowedELRC Appeal (Nairobi), Appeal arising from CMEL Cause No. 1584 of 2019· [2021] KEELRC 1768 (KLR)

Benta Achieng Odinyo v University of Nairobi [2021] KEELRC 1768 (KLR)

Employment and Labour Relations Court
6 May 2021
OMOnesmus N. Makau
4,590 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~18 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court confirmed that employees can enforce CBA benefits like gratuity as personal contract terms in the magistrates' court if their pay is within its limits.

What this practically means

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Executive summary

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The appellant sued the University of Nairobi in CMEL Cause No. 1584 of 2019 claiming that her gratuity of Kshs 415,601 had been erroneously computed, seeking Kshs 1,494,276.76 for 28 years' service under Clause 40 of the CBA, which provided for gratuity at 31% of last yearly basic pay. The respondent raised a preliminary objection asserting that interpretation and enforcement of a CBA fell within the exclusive jurisdiction of the ELRC under section 12(1) and (5) of the ELRC Act. On 30.4.2020 the trial magistrate struck out the suit with costs and directed that the ruling apply to five other causes. On first appeal, Makau J identified three issues: whether the objection raised pure points of law, whether the magistrate erred in upholding it, and whether he erred in extending the ruling to five other suits. The court held the objection was a proper preliminary objection under Mukisa Biscuit, since jurisdiction required no factual inquiry. However, on the merits the court held that under section 59(3) of the Labour Relations Act the registered CBA terms were incorporated into the appellant's individual contract, making the claim one for breach of an employment contract within the magistrate's pecuniary jurisdiction under Gazette Notice No. 6024, not a trade dispute. The magistrate had also wrongly ventured into the unpleaded issue of CBA registration. Further, the extension of the ruling to five other suits without consolidation or a hearing violated those claimants' right to be heard. The appeal was allowed: the striking out was set aside and substituted with dismissal of the preliminary objection, the suit was reinstated before another magistrate, the judgment extended to the five related matters, and costs of the appeal were awarded to the appellant.

Key legal issues

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01

Whether the preliminary objection on jurisdiction was a pure point of law

Holding

Yes; an objection that the magistrate's court lacked jurisdiction to interpret and enforce a CBA required no examination of evidence and was properly raised as a preliminary objection.

Reasoning

Applying the Mukisa Biscuit test, the court held that a preliminary objection contesting the jurisdiction of the Magistrates' Court over matters relating to a CBA pursuant to Gazette Notice No. 6024 needed no evidential inquiry. The pending consolidation application was not a basis for the objection since the notice did not raise it.

p. 4
02

Whether the trial magistrate erred in upholding the preliminary objection

Holding

Yes; the suit was an individual claim for breach of an employment contract (incorrect gratuity computation under Clause 40 of the CBA), within the magistrate's jurisdiction, not a trade dispute.

Reasoning

Section 59(3) of the Labour Relations Act incorporates CBA terms into individual contracts of employment. Once incorporated, the employee may enforce the gratuity term as a contractual right. Because her monthly pay was below Kshs. 80,000, the magistrate's court had jurisdiction under Gazette Notice No. 6024 and section 87(3) of the Employment Act. The magistrate misconceived the dispute as one of CBA registration and interpretation, which no party had pleaded.

p. 5
03

Whether the magistrate erred in extending his ruling to five other suits

Holding

Yes; there was no consolidation and the claimants in the other suits were condemned unheard.

Reasoning

No record showed party consent to extend the ruling. Consolidation under Rule 23 of the ELRC (Procedure) Rules, 2016 requires the court to address the application and establish the threshold, interrogating the issues in each suit. Extending the strike-out to the five matters denied those claimants a hearing on the preliminary objection.

p. 6

Legal principles established

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  • Terms of a registered collective agreement are incorporated into the individual contracts of employment of covered employees, who may enforce them as individual contract terms before the ELRC or subordinate court per the pecuniary limits in Gazette Notice No. 6024
  • An individual claim for breach of an employment contract is distinct from a trade dispute under the Labour Relations Act, which alone falls within the exclusive jurisdiction of the ELRC
  • A trial court cannot extend a ruling on a preliminary objection to other suits without addressing a consolidation application and hearing the affected claimants

Court orders

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  1. 1.The decision by the subordinate court striking out the appellant's suit against the respondent is set aside and substituted with an order dismissing the respondent's Notice of Preliminary objection dated 19th November, 2019
  2. 2.The appellant's suit against the respondent is reinstated with an order that it proceeds on its merits before another Magistrate
  3. 3.This judgment applies to the other 5 matters referred to in the impugned Ruling
  4. 4.The respondent will pay costs of the appeal to the appellant

Authorities

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Legislation

  • Employment and Labour Relations Court Actsection 12(1) and (5); section 15(6); section 29(3) and (4)(b)
  • Labour Relations Actsections 2, 59(2), 59(3), 59(5), 62(1), 73(1), 73(3)
  • Employment Actsections 26(1) and (2), 87(1), (2) and (3)
  • Constitution of Kenya, 2010Article 162(2)(a)
  • Gazette Notice No. 6024 of 10th June 2018paragraph 1
  • Civil Procedure RulesOrder 38 Rule 1
  • The Employment and Labour Relations Court (Procedure) Rules, 2016Rule 23; Rule 28(3)

Cases cited (15)

  • Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd
    (1969) E.A. 696
  • Muhu Holdings Limited v James Muhu Kangari
    [2017] eKLR
  • Janet Muriungi v Chief Offer Department of Education
    [2018] eKLR
  • Kenya Tea Growers Association v Kenya Plantation and Agricultural Workers Union
    [2018] eKLR
  • Teachers Service Commission (TSC) v Kenya National Union of Teachers (KNUT) & 3 Others
    [2015] eKLR
  • Pastoli v Kabale District Local Government & Others
    (2008) 2 EA
  • Republic v Secretary of Firearms Licensing Board & 2 Others Ex-parte Senator Johnson Muthama
    [2018] eKLR
  • Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 Others
    [2012] eKLR
  • Capital Markets Authority v Jeremiah Gitau Kiereini & another
    [2014] eKLR
  • Law Society of Kenya v Centre for Human Rights & Democracy & 12 others
    [2014] eKLR
  • Republic v PMS Innovateus Limited v another ex-parte PZ Cussons Limited
    [2019] eKLR
  • Speaker of National Assembly v James Njenga Karume
    [1992] eKLR
  • Kenya Ports Authority vs Kuston (Kenya) Limited
    (2009) 2 EA 212
  • The Owners Of The Motor Vessel "Lillian S" Vs Caltex Oil (Kenya) Ltd
    (1989) KLR 1
  • National Union of Water and Sewarage Employees & 3 others v Nairobi Water and Sewarage Company Limited
    [2018] eKLR
On appeal from
Chief Magistrate's Court (CMEL Cause No. 1584 of 2019)
CMEL 1584 of 2019
Jurisdiction invoked
Appeal from the subordinate court in employment and labour relations matters pursuant to the Employment and Labour Relations Court Act and Article 162(2)(a) of the Constitution (jurisdiction of the ELRC); Gazette Notice No. 6024 of 10th June 2018 considered

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, "Benta Achieng Odinyo v University of Nairobi [2021] KEELRC 1768 (KLR)", Case Analysis (2021). ELRC Appeal (Nairobi), Appeal arising from CMEL Cause No. 1584 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1768/eng@2021-05-06

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