Kakunzu v Sameer Africa Company Limited (Cause 617 & 619 – 638 of 2018 & 55 of 2017 (Consolidated)) [2023] KEELRC 1495 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the Respondent complied with the CBA in tabulating gratuity
It did not. During the transition period the CBA applied, and its redundancy clause provided for 19 days' service gratuity for all employees irrespective of age or years of service; instead the Respondent applied the retirement clause using age as the criterion, contrary to both the CBA and the Memorandum of Understanding
The MoU left the accrued liability blank and set no conversion formula; the 8th May 2015 meeting with shop stewards never concluded a formula as the agreed follow-up meeting never took place. Clause 3.1 of the MoU required exiting employees during transition to be paid the current agreed entitlement under the CBA dated 1st October 2014. The redundancy occurring in September 2016 fell within the transition period, so the CBA's 19-day gratuity applied, not a retirement clause keyed to age.
Whether the payment of gratuity was discriminatory
Yes - discrimination on grounds of age was proved. Employees hired the same day, doing the same job at the same salary and leaving the same day were paid at different rates (32 days versus 19 days per year) purely based on age (above/below 45 years)
Article 27(4) and (5) of the Constitution prohibit discrimination on grounds of age, and Section 5 of the Employment Act prohibits direct or indirect discrimination in employment benefits, placing the burden on the employer to disprove discrimination. CW1's evidence of differential treatment vis-à-vis Jackson Kariti was unrebutted; RW1 conceded under cross-examination that age does not arise in the redundancy and termination clauses of the CBA. The differential payment was therefore both unconstitutional and unlawful.
Legal principles established
#- An employer who applies a retirement clause rate on the basis of age rather than years of service discriminates on grounds of age, which is prohibited by Article 27 of the Constitution and Section 5 of the Employment Act
- A CBA negotiated with a union and registered by the court cannot be unilaterally amended by the employer; any amendment must be agreed by both parties
- Where the employer bears the statutory burden of proving absence of discrimination, payment at different rates to employees on the same job, same salary, hired and discharged on the same day is a classic case of age discrimination
Court orders
#- 1.A declaration that the decision vide the letter dated 16th July 2015 to freeze the Claimants' gratuity on the basis of age and categorization of employees on the basis of age amounts to discrimination and offends the Constitution
- 2.A declaration that the Respondent fundamentally breached her statutory obligations under the Constitution of Kenya and the Employment Act, 2007 by categorizing the Claimants and adopting a discriminatory gratuity calculation system
- 3.An order directing and/or compelling the Respondent to pay the Claimants equally and without discrimination
- 4.Employees with 6 years' service and below to be paid at 22 days' pay per year worked; employees with 6 or more years of service at 32 days per year worked
- 5.Amounts already paid in respect of gratuity to be recovered from what is payable under the judgment
- 6.Decretal sum to attract interest from the date of Judgment
- 7.Respondent to pay the Claimants' costs of this suit and costs of all the suits
- 8.Judgment to apply to all Claimants in Cause No. 633 of 2016, 617 and 619-638 of 2018 per the consent dated 21st February 2020
- Jurisdiction invoked
- Original employment and labour relations jurisdiction; consolidated claims by consent dated 21st February 2020 adopted on 3rd February 2021
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Otimah v Sameer Africa Limited t/a Sameer Africa PLC (Cause E701 of 2024) [2025] KEELRC 1613 (KLR)[2025] KEELRC 1613 (KLR)30 May 2025distinguished
Cite this brief
#Cite this brief
Caselaw, "Kakunzu v Sameer Africa Company Limited (Cause 617 & 619 – 638 of 2018 & 55 of 2017 (Consolidated)) [2023] KEELRC 1495 (KLR)", Case Analysis (2023). Cause No. 55 of 2017 (with Cause Nos. 617 and 619–638 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1495/eng@2023-06-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.