Banking, Insurance and Finance Union (Kenya) v Bank of Baroda (K) Limited [2019] KEELRC 1087 (KLR)
The bottom line
#Kenya's Employment Court blocked KCB from retiring an employee before 60, finding different retirement ages for similar employees is potentially discriminatory.
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 application is res judicata having regard to the judgment in Cause No. 234/2018 and whether the Court had become functus officio
- 2.Whether the Respondent is in disobedience of the court orders of 4th October 2018 and 29th April 2019
- 3.Whether the grievant, Mr. Thomas Orina Mokinu, had established a prima facie case warranting an injunction against his retirement before 60 years
Key legal issues
#Res judicata / functus officio
The application is not res judicata and functus officio does not apply because this claim concerns a particular grievant, not the union membership generally nor negotiation of retirement age
The Court distinguished the present application from Cause No. 234/2018, in which the judgment of 4th October 2018 declared differential retirement ages discriminatory and directed negotiation of retirement age under the CBA. Having made that pronouncement the Court was functus officio as to that cause, but the present claim, being about a specific grievant due to be retired, is a different matter.
Prima facie case for interim relief
The Claimant established a prima facie case of discrimination warranting restraint of the grievant's retirement before 60 years
The Court found, on the documents and submissions, that the grievant was set to be retired before attaining 60 years while other employees would retire at 60, which was prima facie discriminatory. This satisfied the prima facie case threshold for the interlocutory orders sought, which the Court granted pending hearing and determination of the claim.
Legal principles established
#- An interlocutory application relating to a specific grievant is not barred as res judicata or by functus officio where it differs from the earlier cause concerning the union membership at large
- Retiring an employee earlier than others with a different retirement age is prima facie discriminatory and establishes a prima facie case for injunctive relief
Court orders
#- 1.Orders restraining the Respondent from retiring Mr. Thomas Orina Mokinu before the age of 60 years pending the hearing and determination of the claim
- 2.Costs in the cause
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Not expressly stated; the Court exercises jurisdiction over the interlocutory application arising from Cause No. 234/2018
Relief refused
#Costs of the application to the Claimant
The Court instead ordered costs in the cause
Costs
Costs in the cause
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.
I therefore allow the application and issue orders restraining the Respondents herein from retiring Mr. Thomas Orina Mokinu before the age of 60 years pending the hearing and determination of this claim.
In the circumstances, I find the Applicant has established a prima facie case to warrant issuance of the orders sought.
This Court therefore became functus officio in relation to the said pronouncement.
This Claim relates to a particular grievant who is due to be retired and is not about the issue of the entire Membership of the Claimants as in the Cause No. 234/2018
Issues in the judgment
#The case title, cause number of the present application, and neutral citation are not stated in the judgment; the filing is identified only as an application dated 29th April 2019 arising from Cause No. 234/2018
The parties are referred to throughout by role (Claimant/Respondent) without their full names being stated in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Banking, Insurance and Finance Union (Kenya) v Bank of Baroda (K) Limited [2019] KEELRC 1087 (KLR)", Case Analysis (2019). Not stated in the judgment extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1087/eng@2019-07-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.