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ELRCDismissedCause 611 of 2015

Samson Mutinda Ngui v Social Service League M.P. Shah Hospital [2019] KEELRC 798 (KLR)

Employment and Labour Relations Court
16 September 2019
1,249 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Claimant, employed by the Respondent on 8th February 1978 as a house keeper, was issued a retirement notice on 3rd May 2013 and retired effective 31st December 2013 upon attaining the retirement age. He sued seeking service pay for 35 years, eight months' notice pay per the CBA, salary for 3 years, a long service award, maximum compensation and costs, contending his retirement violated the CBA (retirement age 57) and the employees' handbook (retirement age 60) and amounted to discrimination. The Respondent maintained the Claimant was a unionisable employee governed by the CBA, was retired at 57 with an 8-month notice under Clause 21, that his dues were computed and paid with KShs. 489,200 deducted for Huduma Sacco loans with his consent, leaving KShs.159,209 uncollected. In cross-examination the Claimant conceded he never opposed the retirement and had no objection to his dues being remitted to Huduma Sacco. The court held that the Claimant's terms were governed by the CBA, which fixed retirement at 57 years, that no discrimination arose since the parties had agreed that age, and that the retirement was neither illegal nor unfair. Terminal dues were found properly computed at 24 days' salary per year worked, leaving the uncollected balance of Kshs.159,209. The suit was dismissed with no orders as to costs, and the Claimant was directed to collect his cheque.

Questions the Court framed

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

  1. 1.Whether the Claimant's retirement at 57 years was unlawful, unfair or discriminatory given the CBA retirement age and the employees' handbook retirement age of 60 years
  2. 2.Whether the Claimant's terminal dues were properly computed and paid
  3. 3.Whether the Claimant is entitled to service pay, notice pay, salary for 3 years, long service award and maximum compensation

Key legal issues

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01

Lawfulness and fairness of retirement at 57 years under the CBA

Holding

The retirement was lawful and fair; Clause 21 of the CBA set the retirement age at 57 years with an option to retire early at 50, and the Claimant was retired at 57 with an 8-month notice he never objected to

Reasoning

The court found the Claimant was a unionisable employee whose terms were governed by the CBA. Clause 21 fixed retirement at 57 years. The Claimant conceded in cross-examination that he received the retirement notice, never opposed it, and had no objection to his dues being remitted to Huduma Sacco. The handbook age of 60 applied to non-unionisable staff, so no discrimination arose.

p. 2
02

Discrimination arising from two retirement ages (57 in CBA, 60 in handbook)

Holding

No discrimination was established because the parties had agreed the retirement age in the CBA

Reasoning

The Claimant argued that having two retirement ages was discriminatory contrary to Section 5 of the Employment Act. The court held the Claimant was a unionisable employee covered by the CBA which stipulated retirement at 57; the handbook provision applied to employees not covered by the CBA. Having agreed the age in the CBA, the Claimant could not complain of discrimination.

p. 2
03

Computation and payment of terminal dues

Holding

Terminal dues were properly computed at 24 days' salary per year worked under the CBA, leaving a balance of Kshs.159,209 which the Claimant refused to collect

Reasoning

The court found the CBA explained benefits were calculated at 24 days' salary per year worked, and Appendix 5 of the Respondent's defence demonstrated the computation. KShs. 489,200 was deducted for Huduma Sacco loans with the Claimant's consent, leaving KShs.159,209 uncollected. The Claimant's complaint that he did not know how dues were computed did not establish a claim.

p. 2

Legal principles established

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  • An employee governed by a CBA cannot claim discrimination where the retirement age applied was the one agreed in the CBA
  • A party cannot disown terms of a CBA that govern its employment while seeking to benefit from other terms

Court orders

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  1. 1.The suit is dismissed
  2. 2.No orders as to costs
  3. 3.The Claimant to proceed to pick his cheque of Kshs.159,209/= from the Respondent

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Act

Relief refused

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Service pay for 35 years of KShs. 607,461.00

Terminal dues were computed per the CBA and the retirement was lawful

p. 2

Notice of 8 months (KShs. 285,864.00), salary for 3 years, long service award and maximum compensation

Claimant was issued an 8-month retirement notice per Clause 21 of the CBA and never objected to the retirement

p. 2

Costs

No orders as to costs - each party to bear own costs effectively; the court ordered 'no orders as to costs'

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Having considered this fact, I do not find the retirement of Claimant to have been illegal or unfair in anyway.
p. 2Lawfulness and fairness of retirement under CBA
The Claimant contends discrimination, which I do not find to be the position, the Parties having agreed with this issue in the Parties' CBA.
p. 2Discrimination on retirement age
It is my finding that the Claimant has no case against the Respondent and he should proceed to pick his cheque of Kshs.159,209/=.
p. 2Terminal dues computation
The case is otherwise dismissed with no orders as to costs.
p. 2Final orders - dismissal and costs

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Samson Mutinda Ngui v Social Service League M.P. Shah Hospital [2019] KEELRC 798 (KLR)", Case Analysis (2019). Cause 611 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/798/eng@2019-09-16

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