James Koskei Chirchir v Chairman Board Of Governors Eldoret Polytechnic (Civil Appeal 211 of 2005) [2011] KECA 335 (KLR)
The bottom line
#A Kenyan court confirmed that an employment contract incorporating a Collective Bargaining Agreement binds the employer even after the employee leaves the union.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Collective Bargaining Agreement remained applicable to the appellant notwithstanding his resignation from the union before his dismissal
- 2.Whether the appellant was entitled to service gratuity, loss of future earnings and alleged underpaid house allowance
- 3.Whether the first appellate court erred in denying the appellant his costs before the trial court
Key legal issues
#Applicability of a Collective Bargaining Agreement to a non-union employee
The CBA applied to the appellant notwithstanding his resignation from the union, because his letter of appointment expressly incorporated its terms of service for his cadre, and the dismissal letter itself was referable to those terms.
Clause 7 of the CBA made union membership voluntary and protected non-union workers from penalty. The court found no clause in the agreement dealing with non-members, but the decisive factor was the letter of appointment, which incorporated the terms of service in the CBA for the appellant's cadre. The respondent itself anchored the dismissal letter in those terms. Membership of the union was therefore not a precondition to benefiting from the CBA's terms of service.
Entitlement to service gratuity on wrongful dismissal
Service gratuity under clause 31 of the CBA is payable only to employees who retire; a dismissed employee, though wrongfully dismissed, cannot claim it.
The trial and first appellate courts had found as fact that the appellant was guilty of misconduct. Because his employment terminated by dismissal rather than retirement, he fell outside clause 31 of the CBA. The irregularity in the termination procedure rendered the dismissal wrongful and gave rise to limited terminal dues, but did not convert the dismissal into a retirement so as to attract gratuity or loss of future earnings.
Discretion as to costs on appeal
Although costs ordinarily follow the event under section 27 of the Civil Procedure Act, they remain discretionary; an appellate court denying a successful party costs of the trial must give reasons, failing which its order will be set aside.
The superior court denied the appellant his costs both before it and before the trial court without explaining why the trial costs were denied. The Court of Appeal held that in the absence of any explanation the judge erred, and substituted an order giving the appellant his trial costs while making no order as to costs in the two appellate courts, since both appeals had largely failed.
Legal principles established
#- On a second appeal to the Court of Appeal only issues of law fall for consideration.
- Where an employee's letter of appointment incorporates the terms of a Collective Bargaining Agreement, that Agreement governs the employee's terms of service whether or not he remains a union member.
- An employee dismissed for misconduct is not entitled to service gratuity payable on retirement, even where termination procedures were improperly followed.
- Costs remain a matter within the discretion of the court notwithstanding section 27 of the Civil Procedure Act; a first appellate court must explain its reasons for depriving a successful party of costs.
Court orders
#- 1.Set aside the first appellate court's order on costs
- 2.Appellant awarded his costs before the trial court
- 3.No order as to costs both before the superior court and this Court
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Eldoret
- H.C.C.A. No. 32 of 2003
- Jurisdiction invoked
- Second appeal to the Court of Appeal under the Civil Procedure Act, confined to issues of law
Relief refused
#Claim for service gratuity
The appellant was dismissed for misconduct, not retired; improper termination procedure did not per se entitle him to gratuity as if retired.
Claim for loss of future earnings
The claim presupposes that the appellant would have worked until retirement.
Claim for underpaid house allowance
No evidence was adduced of why or when the allowance was underpaid; arrears claimed arose after he had ceased to be an employee.
Costs
Appellant to have his costs before the trial court; no order as to costs both before the superior court and this Court.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
This is a second appeal. Only issues of law fall for consideration.
It is our view that the Collective Bargaining Agreement was applicable to the appellant.
The mere fact that the termination procedures were not properly followed would not per se entitle him to claim service gratuity as if he had been retired.
We would therefore set aside the order on costs and in place thereof order that the appellant shall have his costs before the trial court, but make no order as to costs both before the superior court and this Court.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (3)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Joseph Kithinji Gitonga & another v Kiogora Mutai & Company Advocates [2017] KECA 469 (KLR)[2017] KECA 469 (KLR)23 Jun 2017followed
- John Kamunya & another v John Nginyi Muchiri & 3 others [2015] KECA 767 (KLR)[2015] KECA 767 (KLR)26 Mar 2015applied
- Mwangi Mutahi Ruga v Municipal Council of Nyeri & another [2014] KECA 433 (KLR)[2014] KECA 433 (KLR)30 Jul 2014followed
Cite this brief
#Cite this brief
Caselaw, "James Koskei Chirchir v Chairman Board Of Governors Eldoret Polytechnic (Civil Appeal 211 of 2005) [2011] KECA 335 (KLR)", Case Analysis (2011). Civil Appeal No. 211 of 2005. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2011/335/eng@2011-03-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.