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ELRCDismissedCause (not stated in excerpt; filed 10 February 2021)· [2022] KEELRC 899 (KLR)

John Ochieng Odie v Attorney General & 3 others [2022] KEELRC 899 (KLR)

Employment and Labour Relations Court
2 February 2022
RSRadido Stephen
993 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled that the clock on a pension claim starts when pension is actually refused, not when someone changes employers years earlier.

What this practically means

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Executive summary

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The Claimant, a former public servant who transferred his service from the Public Service Commission to the Kenya National Examinations Council effective 1 December 2008, sued for denial of accrued retirement benefits. The Respondents raised a preliminary objection contending that the suit was time-barred under section 90 of the Employment Act, arguing that the cause of action arose on the 2008 transfer and suit should have been filed by 1 December 2011, and that the suit was res judicata, the issues of pension, loss of employability and general damages having been litigated in Industrial Cause No. 722 of 2009. On res judicata, the Court reviewed the prior judgment and found its cause of action related to breaches by KNEC during the Claimant's service with the Council, whereas the present suit claims pension for the earlier Public Service Commission period; res judicata did not arise. On limitation, the Court held that under section 6 of the Pensions Act, pension eligibility requires retirement, ten years' service and attainment of age 50. At the time of transfer the Claimant had met the service threshold but had neither retired nor attained 50 years, so he could not have lawfully claimed pension in 2008 and time could not run from that date. He became eligible upon retirement and attaining 50 years, and the letter of 26 November 2019 declining pension started limitation; the suit filed on 10 February 2021 was therefore within time. The Court dismissed the preliminary objection with costs in the cause and urged the parties to consider settlement out of court.

Key legal issues

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01

Res judicata

Holding

Res judicata does not arise because the earlier suit concerned breaches during service with KNEC, whereas this suit claims pension for service under the Public Service Commission before transfer.

Reasoning

The Court reviewed the prior judgment in Cause No. 772(N) of 2009 and found its cause of action related to alleged breaches by KNEC during the Claimant's service with the Council. The present claim is for pension for the earlier Public Service Commission period, a different cause of action, so the doctrine was inapplicable.

p. 2
02

Limitation - when time begins to run

Holding

The cause of action accrued on 26 November 2019 when the Claimant was informed he did not qualify for pension, not on the 2008 transfer of service.

Reasoning

Under section 6 of the Pensions Act, pension eligibility requires retirement, at least 10 years of service and attainment of age 50. At the 2008 transfer the Claimant was neither retired nor 50, so he could not have claimed pension then, and time could not run. He became eligible upon retirement and reaching 50; the refusal letter of 26 November 2019 started limitation, making the February 2021 filing timely.

p. 2

Legal principles established

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  • Time under section 90 of the Employment Act runs from the date the claimant becomes eligible for the benefit claimed, here the date of the letter declining pension.

Court orders

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  1. 1.The Notice of Preliminary Objection is dismissed with costs being in the cause
  2. 2.The parties were urged to make genuine attempts to settle the dispute outside Court

Authorities

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Legislation

  • Employment Actsection 90
  • Pensions Actsection 6 and section 6(1)(b)

Cases cited (2)

  • Maersk Kenya Ltd v Murabu Chaka Tsuma
    (2017) eKLR
  • Samson O. Ngonga v Public Service Commission & 5 Ors
    (2013) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Court Act (dispute over accrued retirement benefits under contract of employment)

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, "John Ochieng Odie v Attorney General & 3 others [2022] KEELRC 899 (KLR)", Case Analysis (2022). Cause (not stated in excerpt; filed 10 February 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/899/eng@2022-02-02

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