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ELRCPartially AllowedAmended Plaint dated and filed 29th September 2003 (former cause; number not stated in judgment)· [2019] KEELRC 2198 (KLR)

Charles P O Nyamunga & 68 others v Maseno University [2019] KEELRC 2198 (KLR)

Employment and Labour Relations Court
21 February 2019
2,618 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The 69 claimants were retrenched from Maseno University in 2001 under a government-wide Civil Service retrenchment policy, and sued for Kshs 41,056,218.40 comprising unsupplied uniforms, overtime, commuting allowances, underpayment, balance of the retrenchment package (golden handshake, training and transport allowances), unpaid severance, gratuity and benevolent fund dues, plus general damages and 12 months' salary compensation for allegedly unfair retrenchment. The court held that the retrenchment followed a fair and lawful procedure: the selection process was transparent and not materially impugned, and the government policy directive did not derogate from ordinary redundancy principles - the Egerton University decision to the contrary was a distinction without a difference. However, the court found the respondent erred in materially deviating from the Office of the President circular dated 23rd June 2000, which prescribed severance of 2½ months' salary per completed year of service. Having paid one month's severance and one month's gratuity (an effective two months), the respondent was ordered to pay additional severance of half a month's salary per completed year of service, computation to be filed within 60 days. Following the Egerton University authority, each claimant was awarded Kshs 35,000 for training not provided (Kshs 40,000 less Kshs 5,000 already paid). Claims for uniforms, overtime, commuting allowance, the golden handshake balance, underpayment (spent by consent) and general damages/12 months' compensation (Employment Act 2007 not in force in 2001) were dismissed. The award carries interest at court rates from filing; the respondent was ordered to pay the costs. Ten plaintiffs have died and their claims are subject to substitution.

Key legal issues

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01

Whether the retrenchment procedure was fair and lawful

Holding

The retrenchment followed a fair procedure and was lawful; selection was transparent and objective and not materially impugned.

Reasoning

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.

p. 3
02

Whether the respondent underpaid the severance package by applying the University Guidelines instead of the Presidential circular of 23rd June 2000

Holding

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.

Reasoning

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.

p. 4
03

Whether the claimants were entitled to training allowance

Holding

Yes - following the Egerton University decision, each claimant awarded Kshs 40,000 less Kshs 5,000 already paid, i.e. Kshs 35,000 each.

Reasoning

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.

p. 4
04

Whether 12 months' salary compensation under the Employment Act, 2007 applied

Holding

No - the retrenchment occurred in 2001 when the present Employment Act, 2007 was not in force.

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 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. 2.Respondent to pay each claimant Kshs 35,000 in respect of essential training not given to the retrenchees
  3. 3.Award payable with interest at court rates from date of filing suit till payment in full
  4. 4.Respondent to pay costs of the suit
  5. 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

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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, "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.