Ngugi v University of Nairobi (Employment and Labour Relations Appeal E282 of 2024) [2025] KEELRC 3740 (KLR) (19 November 2025) (Judgment) Neutral citation: [2025] KEELRC 3740 (KLR) REPUBLIC OF KENYA IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI EMPLOYMENT AND LABOUR RELATIONS APPEAL E282 OF 2024 DKN MARETE, J NOVEMBER 19, 2025 BETWEEN JANE L W NGUGI ................................................................................... APPELLANT AND UNIVERSITY OF NAIROBI .............................................................. RESPONDENT JUDGMENT 1. This matter was brought to court by way of a Memorandum of Appeal dated 30th September, 2024. It is grounded as follows;That the trial court erred in fact and law by finding that upholding the express term in the CBA would be to act retrospectively.That the trial court also erred in holding that two CBA’s can operate and be used to calculate gratuity of an employee.That the trial court erred in failing to find and hold that the Appellant having been promoted on 23rd August, 2016, the applicable CBA, was the one for 2013 to 2017 that was in force when the cause of action arose.That the trial court erred in law and fact by finding that the Appellant had not proved her case in the midst of overwhelming evidence to the contrary.The trial court’s disregard of the Appellant’s evidence, submission and authorities in arriving at an erroneous decision and dismission the claim. 2. The Appellant therefore prays that the judgment of the trial court be set aside in its entirety and this court enters judgment in terms of the Appellant’s claim dated 19th August, 2019. 3. The Respondent opposes the appeal and submits that the Appellant had worked for the Respondent for a period of twenty-five (25) years. The CBA signed on 24th February, 2016 cannot be applied retrospectively as this did not exist at the time of entering the employment contract in 1989. The CBA had no provision for prospective or retrospective application of the same. This is well established in the authorities of Municipality of Mombasa v Nyali Limited (1963) EA 371, Samuel Kamau Macharia & Another v Kenya Commercial Bank Limited & 2 Others (2012) eKLR and Keroche Industries Limited v Kenya Revenue Authority & 5 Others (2007) eKLR where the court observed that retrospective operation of the law would not be permissible unless there is a clear intention of the parties to this https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/3740/eng@2025-11-19 1
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efiect. This can only be expressed in an oral or written contract and must be adduced in evidence. On this premises, it is the Respondent’s case that this appeal has no factual or legal basis and therefore material for dismissal. 4. The Appellant faulted the finding of the trial court on the basis that a CBA is a progressive document borne out of negations inter partes and therefore bides the parties on registration. This is incorporated to the individual employee’s contract of employment as of right. Therefore, the CBA of 2013 -2017 was the active CBA and is still in force. This is in reference to the communique dated 20th March, 2019 at page 16 of the Record of Appeal and also clauses (b) and (c) of the gratuity provisions of the CBA efiective 1st July, 2015. 5. The Appellant’s submission in support of this appeal do not answer the issue of the application of the CBA to the computation of her gratuity. The reasoning and partial application of the two CBA’s in this computation seems the viable and legitimate application of the law. This is because an application of the later CBA in such calculation would amount to a retrospective application of the CBA for 2013 to 2017 thereby occassioning injustice. 6. I am therefore inclined to dismiss the appeal with orders that each party bears their costs of the same. DELIVERED, DATED AND SIGNED THIS 19TH DAY OF NOVEMBER, 2025. .......................................... D. K. NJAGI MARETE JUDGE Appearances; Miss Achila holding brief for Onenga instructed by Omongo Gatune & Company Advocates for the Appellant. Mr. Simiyu holding brief for Kipkorir instructed by KTK Advocates for the Respondent. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/3740/eng@2025-11-19 2
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