Charles P O Nyamunga & 68 others v Maseno University [2019] KEELRC 2198 (KLR)
The bottom line
#Kenya's Employment Court ordered Maseno University to pay 69 retrenched staff extra severance and training allowances, 18 years after the 2001 retrenchment.
What this practically means
#Executive summary
#Key legal issues
#Whether the retrenchment procedure was fair and lawful
The retrenchment followed a fair procedure and was lawful; selection was transparent and objective and not materially impugned.
The court found the exercise was guided by a government-wide policy and that the report identifying potential retrenchees set out a transparent, analytical process leading to objective selection. The plaintiffs did not materially impugn that report. The court rejected the argument that being a policy directive distinguished this retrenchment from ordinary redundancy, holding the Egerton University case was a distinction without a difference.
Whether the respondent underpaid the severance package by applying the University Guidelines instead of the Presidential circular of 23rd June 2000
Yes, partially - the respondent was obliged to apply the Presidential circular's rate of 2½ months' salary per completed year; having paid severance at one month plus gratuity at one month (2 months total), the shortfall was half (1/2) month's salary per completed year of service.
The circular from the Office of the President dated 23rd June 2000 applied to the entire Public Service and prescribed severance of 2½ months' salary per completed year. The University materially deviated, paying one month's severance and one month's gratuity, an effective 2 months. The cumulative difference is therefore half a month's salary per year of service, which the court awarded as additional severance pay.
Whether the claimants were entitled to training allowance
Yes - following the Egerton University decision, each claimant awarded Kshs 40,000 less Kshs 5,000 already paid, i.e. Kshs 35,000 each.
The court agreed with Justice Koome's finding in Amos Ng'ang'a Waiharo v Egerton University that failure to provide budgeted training was a serious oversight on the government and a legitimate claim. Since each claimant had already received Kshs 5,000 in lieu of training, the net award was Kshs 35,000 each.
Whether 12 months' salary compensation under the Employment Act, 2007 applied
No - the retrenchment occurred in 2001 when the present Employment Act, 2007 was not in force.
The court noted that the retrenchment took place in 2001, before the current Employment Act. Section 40 relied on in the cited Court of Appeal decision did not then exist, and the erstwhile Act did not provide for compensation equivalent to 12 months' salary, though it embraced similar retrenchment principles.
Legal principles established
#- A public institution implementing a government-wide retrenchment policy must still adhere to the criteria in the applicable circular; material deviation to the detriment of employees is actionable.
- A government retrenchment policy directive does not derogate from common-law and statutory principles guiding fair and humane retrenchment.
- Where a CBA grievance arises, it must be escalated internally and reported to the Ministry of Labour before being litigated.
Court orders
#- 1.Respondent to pay additional severance pay to each claimant equivalent to half (1/2) month salary for each completed year of service, computation to be done and filed in 60 days
- 2.Respondent to pay each claimant Kshs 35,000 in respect of essential training not given to the retrenchees
- 3.Award payable with interest at court rates from date of filing suit till payment in full
- 4.Respondent to pay costs of the suit
- 5.Judgment entered in favour of the plaintiffs including deceased plaintiffs subject to substitution by lawful representatives
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment dispute (specific enabling provision not stated in judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Charles P O Nyamunga & 68 others v Maseno University [2019] KEELRC 2198 (KLR)", Case Analysis (2019). Amended Plaint dated and filed 29th September 2003 (former cause; number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2198/eng@2019-02-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.