Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealDismissedCourt of Appeal at Nairobi (Employment and Labour Relations Appeal)

Kenya Railways Corporation v Ododa & 216 others (Civil Appeal E345 of 2023) [2024] KECA 1620 (KLR)

Court of Appeal of Kenya
8 November 2024
ETE. TuiyottJLJ. LesiitENE. W. Ngenye-Macharia
8,846 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~35 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal confirmed that 218 retrenched Kenya Railways workers can still claim unpaid terminal dues because the employer's breach continued for years.

What this practically means

#

Executive summary

#
The Kenya Railways Corporation appealed against the judgment of M Onyango, J in the Employment and Labour Relations Court, which had found in favour of 218 former employees retrenched in 1998. The respondents claimed unpaid terminal dues under a CBA dated November 24, 1997 and a Central Joint Council Agreement dated November 10, 1997, both registered in Industrial Court Case No 169 of 1998, including salary increments of 40% and 70% said to have been only partially paid, and sought to retain staff houses pending full payment. Before the Court of Appeal three issues fell for determination: whether the claim was res judicata by dint of the Nakuru High Court case; whether it was time barred; and whether it fell under the Retirement Benefits Act for the Retirement Benefits Authority Tribunal. The Court, as a first appellate court, re-evaluated the evidence. It held the claim was not res judicata because the Nakuru case involved locomotive drivers and different issues, and the elements of res judicata must be satisfied conjunctively. On limitation, it held that the appellant's ongoing failure to honour the CBA constituted a continuing injury under section 90 of the Employment Act, so time had not begun to run, especially as the appellant never stated when the breach ceased. On jurisdiction, it held that the dispute was between employer and employees over enforcement of a collective agreement, within the ELRC's jurisdiction, not a grievance against a scheme's trustees under sections 46 and 47 of the Retirement Benefits Act. The appeal was dismissed with costs to the respondents, affirming the decision below.

Questions the Court framed

#

The issues the Court set itself to decide, in its own words.

  1. 1.Whether the respondents' claim was res judicata by dint of the Nakuru High Court Civil Case No 397 of 1998
  2. 2.Whether the respondents' claim was statute barred on account of limitation of time
  3. 3.Whether the respondents' claim is one of pension falling under the Retirement Benefits Act, for determination by the Retirement Benefits Authority Tribunal

Key legal issues

#
01

Whether the respondents' claim was res judicata given the prior Nakuru case

Holding

The claim was not res judicata because the parties and issues differed substantially from the Nakuru case, which involved locomotive drivers claiming overtime and night shift allowances, while the ELRC claim was by employees of all cadres enforcing the CBA and CJC Agreement

Reasoning

The Court compared the parties, subject matter and prayers in the Nakuru case and the ELRC claim. The Nakuru case was filed by locomotive drivers and centred on overtime and night shift allowances and a 25% award; the ELRC claim involved employees of all cadres, some of whom were not parties to the Nakuru case. The Nakuru court did not address the terms of the CBA and CJC Agreement. Since the elements of res judicata must be satisfied conjunctively, the claim was not barred.

p. 21
02

Whether the respondents' claim was time barred

Holding

The claim was not time barred because the appellant's continuing failure to honour the CBA and CJC Agreement constituted a continuing injury under section 90 of the Employment Act, and the appellant never indicated when the breach ceased

Reasoning

Section 90 of the Employment Act allows claims based on continuing injury within twelve months of cessation. The Court, drawing on South African authority in Barnett and its own precedents in German School Society v Ohany and Nganga v Christ the King Parish, held that the unpaid terminal dues were a continuous breach giving rise to a series of fresh causes of action. Letters by the appellant acknowledging the unpaid dues confirmed the breach persisted, so time did not run.

p. 23
03

Whether the dispute fell within the Retirement Benefits Authority Tribunal's jurisdiction rather than the ELRC's

Holding

The ELRC had jurisdiction because the dispute was between an employer and employees over enforcement of a CBA and CJC Agreement, not a grievance against a decision of a scheme's manager or trustees

Reasoning

Sections 46 and 47 of the Retirement Benefits Act apply where a member is dissatisfied with a decision of a manager, administrator, custodian or trustees of a scheme. Here the respondents were dissatisfied with the appellant's failure to honour the CBA, and no decision or tabulation by the Scheme's trustees was in place, distinguishing Jimmy R Kavilu. The ELRC's jurisdiction under section 12 of the ELRC Act covers registration and enforcement of collective agreements.

p. 24

Legal principles established

#
  • All elements of res judicata under section 7 of the Civil Procedure Act must be satisfied conjunctively before the doctrine can be invoked
  • A continuing breach by an employer of a term of an agreement with an employee is a continuing injury under section 90 of the Employment Act, and time does not run until the breach ceases; a continuing injury gives rise to a distinct and separate cause of action for as long as it persists
  • Disputes referred to the Retirement Benefits Authority under sections 46 and 47 of the Retirement Benefits Act are those in which a person is aggrieved by a decision of a manager, trustee or administrator of a scheme; disputes between an employer and employees to enforce a collective agreement fall within the jurisdiction of the ELRC

Court orders

#
  1. 1.The appeal is dismissed
  2. 2.Costs of the appeal awarded to the respondents

The bench

#

One judgment of the whole court — no separate or dissenting opinions.

ET
majority
JL
majority
EN
majority
On appeal from
Employment and Labour Relations Court
Nairobi ELRC Cause No 1789 of 2015
Jurisdiction invoked
Appeal from the Employment and Labour Relations Court to the Court of Appeal under the Employment and Labour Relations Court Act; court exercised first appellate jurisdiction over the ELRC decision

Relief refused

#

Setting aside of the judgment and decree of M Onyango, J and substitution with an order dismissing the respondents' suit

The Court re-evaluated the evidence and found the appeal unmeritorious; the claim was neither res judicata nor time barred and the ELRC had jurisdiction

p. 25

Costs

The appeal was dismissed with costs to the respondents.

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.

Consequently, the claim by the respondents was not res judicata.
p. 21Res judicata
As long as the continuing injury persists, it gives rise to a distinct and separate cause of action.
p. 22Limitation - continuing injury
The ELRC was indeed vested with jurisdiction to hear and determine the dispute before it.
p. 25Jurisdiction of the ELRC over collective agreement disputes
From our re- evaluation of the evidence tendered before the trial court, we reach the inescapable conclusion that the appeal is unmeritorious. It is hereby dismissed with costs to the respondents.
p. 25Disposition - final orders

Issues in the judgment

#
minor

The judgment refers inconsistently to the Nakuru suit number, at one point as No 397 of 1998 and elsewhere as No 397 of 1997, and inconsistently to the trial court's reliance on section 87 versus section 81 of the Kenya Railways Corporation Act

minor

The record of appeal as filed is incomplete; the appellant's amended response dated December 14, 2019 is partly missing

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (12)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "Kenya Railways Corporation v Ododa & 216 others (Civil Appeal E345 of 2023) [2024] KECA 1620 (KLR)", Case Analysis (2024). Court of Appeal at Nairobi (Employment and Labour Relations Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1620/eng@2024-11-08

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