Mibei v Kenya Union of Post Primary Education Teachers Union (Cause E041 of 2022) [2023] KEELRC 1074 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Existence of a valid contract of service after February 27, 2021
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
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.
Gratuity and pension entitlement
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
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.
Leave, holidays, weekend work, loans and general damages
All these claims failed for want of proof and because the defaults occurred outside the employment period
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.
Legal principles established
#- 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
#- 1.The Claimant's claim for payment of salary for the months of April to September, 2021 is dismissed
- 2.The Claimant's claim is dismissed in its entirety
- 3.No orders on costs, the Claimant being a member of the Respondent Union
- Jurisdiction invoked
- Employment and Labour Relations Court original jurisdiction over employment disputes
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.