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ELRCPartially AllowedNot stated in the judgment as provided· [2023] KEELRC 745 (KLR)

Olwande v Kenya Medical Research Institute & 2 others (Cause E056 of 2021) [2023] KEELRC 745 (KLR)

Employment and Labour Relations Court
28 March 2023
CBChristine N. Baari
3,551 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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A retired KEMRI employee lost most of his allowance claims for being filed too late, but his pension claim was sent to the Retirement Benefits Authority for decision.

What this practically means

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Executive summary

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The Claimant, employed by the 3rd Respondent (KEMRI) from January 16, 1991 and retired on July 31, 2018, sued for unpaid allowances said to arise from his secondment to the KEMRI-CDC project: Supplement I, II and S allowances (Kshs 7,288,919.75), a medical cover allowance (Kshs 6,750,000.00), airtime, an acting allowance, and pension contributions for 1991 to 2007 (Kshs 3,627,849.42). The Respondents denied any agreement for the allowances, contended that salary, allowances and pension were paid by KEMRI with CDC reimbursement only during the three-year secondment, that pension matters rest with the pension scheme and the Retirement Benefits Disputes Tribunal, and that the claims were time-barred. The court found the secondment formally lapsed after its three-year term and renewals, with no official extension thereafter, and that the Claimant's continued presence in the program was unexplained, with two distinct payroll numbers. No evidence proved the alleged promotion or entitlement to the supplements, and the CDC program was not joined to the suit. The monthly allowance claims were held to be continuing injuries under section 90 of the Employment Act, filed nearly three years after retirement, and were therefore struck out as statute barred. On pension, the court held the claim was not affected by limitation and undisputed in quantum, but following Kenya Ports Authority and Albert Chaurembo Mumba, remitted it to the Chief Executive Officer of the Retirement Benefits Authority. Each party was ordered to bear its own costs.

Key legal issues

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01

Whether the Claimant was entitled to the supplemental, medical cover, airtime and acting allowances claimed

Holding

The claim was struck out as statute barred; in any event no evidence proved promotion or entitlement to the allowances, which if any were payable by the KEMRI-CDC program, a party not joined to the suit

Reasoning

The secondment to KEMRI-CDC lapsed after three years with no official extension; reimbursement covered only the secondment period. No evidence of the promotion or supplement allowance was adduced. The Claimant's continued stay in the program beyond secondment could not be explained, and he did not join the CDC program to the suit. The monthly unpaid claims were continuing injuries under section 90, filed more than twelve months after retirement.

p. 6
02

Whether the pension claim was maintainable before the ELRC

Holding

The pension claim, though not time-barred, was remitted to the Chief Executive Officer of the Retirement Benefits Authority, following Kenya Ports Authority and Albert Chaurembo Mumba

Reasoning

The Court found pension is not affected by limitation and that the Respondents did not dispute the sum of Kshs 3,627,849.42. However, citing Court of Appeal and Supreme Court authority, pension disputes are not trade disputes and fall within the Retirement Benefits Authority's dispute-resolution mechanism, headed by its CEO under section 46(1) of the applicable regime.

p. 7

Legal principles established

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  • Claims based on monthly payments unpaid over a period constitute continuing injuries under section 90 of the Employment Act, which must be filed within twelve months of cessation
  • Pension disputes are not trade disputes and fall within the jurisdiction of the Retirement Benefits Authority, not the Employment and Labour Relations Court

Court orders

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  1. 1.The Claimant's pension claim is remitted for adjudication by the Chief Executive Officer of the Retirement Benefits Authority.
  2. 2.The rest of the Claimant's Memorandum of Claims is statute barred, and is struck out.
  3. 3.Parties shall bear their own costs of the suit.
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, including section 90 (limitation) and section 10 and 74 (records)

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, "Olwande v Kenya Medical Research Institute & 2 others (Cause E056 of 2021) [2023] KEELRC 745 (KLR)", Case Analysis (2023). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/745/eng@2023-03-28

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