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ELRCDismissedClaim dated September 23, 2022 (Memorandum of Claim filed 26th September, 2022)· [2023] KEELRC 1074 (KLR)

Mibei v Kenya Union of Post Primary Education Teachers Union (Cause E041 of 2022) [2023] KEELRC 1074 (KLR)

Employment and Labour Relations Court
4 May 2023
2,940 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court confirmed that union officials' jobs end automatically when they lose elections, regardless of any claimed employment contract.

What this practically means

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Executive summary

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The Claimant, a teacher seconded from the Teachers Service Commission to the Respondent union under a 2010 Recognition Agreement, was elected Executive Secretary of the Kericho branch in February 2011 and re-elected in 2016. He claimed the union offered him a ten-year contract effective September 27, 2011, and sued after the union stopped his salary in April 2021, following his loss in the February 2021 union elections. He sought unpaid salaries, pension contributions, gratuity, leave and holiday pay, repayment of defaulted loans, damages for embarrassment, and a certificate of service. The Respondent maintained that his tenure was tied to the elective position, that it paid him up to March 2021, paid gratuity of Kshs 587,308 through Britam Insurance from 2016, and wrote to the TSC for his redeployment. The court framed two issues: whether a valid contract subsisted after February 27, 2021, and entitlement to remedies. Holding that the tenure of an elective post is dictated by the electoral cycle and that no written contract was produced, the court found the employment relationship automatically terminated upon loss of the election. The claims for salary, pension, gratuity, leave and holidays, loans and general damages all failed. The entire claim was dismissed with no orders on costs, the Claimant being a member of the Respondent union.

Key legal issues

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01

Existence of a valid contract of service after February 27, 2021

Holding

No valid contract subsisted after the Claimant lost the union elections of February 2021; the employment relationship terminated automatically upon loss of the elective position

Reasoning

The Claimant held an elective position whose tenure was dictated by the electoral cycle, not a written contract. No written contract was produced in evidence. The TSC was obliged to redeploy him when he ceased being an official, and its delay did not extend his service with the union. The Claimant's own letters seeking posting confirmed he knew he had left the union's service.

p. 5
02

Gratuity and pension entitlement

Holding

Gratuity of Kshs 587,308 was paid through Britam from 2016; upon accepting the gratuity arrangement the Claimant lost the right to 31% pension remission

Reasoning

The insurer confirmed payment of Kshs 587,308 under Policy No. 169-463 with premiums via check-off dating back to 2016. The gratuity arrangement begun in 2016, so nothing is owed for the earlier period. Requiring both pension remission and gratuity would amount to a double charge on the union.

p. 6
03

Leave, holidays, weekend work, loans and general damages

Holding

All these claims failed for want of proof and because the defaults occurred outside the employment period

Reasoning

The Claimant, as Executive Secretary responsible for day-to-day operations, did not show the particular holidays and weekends worked. The financial defaults arose after the employment relationship had ended, so the Respondent cannot be held responsible for the Claimant's losses during that period.

p. 6

Legal principles established

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  • The term of an elective post is dictated by the electoral cycle and not a written contract of service; upon loss of election the employment relationship automatically terminates
  • An employer's obligation to remit pension and to pay gratuity cannot co-exist; acceptance of a gratuity arrangement extinguishes the right to pension remission
  • An employer's obligation to remit pension contributions cannot coexist with a gratuity arrangement
  • Delay or failure by the TSC to redeploy a seconded teacher does not extend the teacher's contract with the union

Court orders

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  1. 1.The Claimant's claim for payment of salary for the months of April to September, 2021 is dismissed
  2. 2.The Claimant's claim is dismissed in its entirety
  3. 3.No orders on costs, the Claimant being a member of the Respondent Union

Authorities

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Cases cited (3)

  • Simon Wycliffe Ouma v Bulsho Trading Company
    [2018] eKLR
  • Fancy Jeruto Cherop & Another vs Hotel Cahay Limited
    [2018] eKLR
  • Kenya Power & Lighting Company Limited vs. Aggrey Lukorito Wasike
    [2017] eKLR
Jurisdiction invoked
Employment and Labour Relations Court original jurisdiction over employment disputes

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, "Mibei v Kenya Union of Post Primary Education Teachers Union (Cause E041 of 2022) [2023] KEELRC 1074 (KLR)", Case Analysis (2023). Claim dated September 23, 2022 (Memorandum of Claim filed 26th September, 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1074/eng@2023-05-04

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