[2018] KEELRC 2094 (KLR)
The court found that the Claimant failed to disclose material facts when seeking interim orders, specifically by not providing a proper history of the matter. The court held that the balance of convenience favoured discharging the interim orders, as the Respondent had already removed the Claimant from the payroll...
Source-derived case information.
- Citation
- [2018] KEELRC 2094 (KLR)
- Parties
- Claimant: Janerose Njeri Nduati; Respondent: Teachers Service Commission
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 1137 of 2017
- Procedural Posture
- Employment Cause / Interlocutory Ruling on Interim Orders
- Outcome
- Interim orders discharged and set aside; main suit to be heard on priority basis.
- Judges
- MN Nduma, DO Ogal
- Legal Topics
- Retirement Age Dispute, Material Non Disclosure, Interim Injunctions, Public Policy on Retirement, Balance of Convenience
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Janerose Njeri Nduati
Claimant
Teachers Service Commission
Respondent
Procedural Posture
Employment Cause / Interlocutory Ruling on Interim Orders
Legal Issues
- 1 Whether the Claimant's correct retirement age is based on the date of birth provided at employment or a later asserted date.
- 2 Whether the interim orders restraining retirement should be set aside due to material non-disclosure.
- 3 Whether the balance of convenience and public interest favour discharge of interim orders.
Ratio Decidendi
The court found that the Claimant failed to disclose material facts when seeking interim orders, specifically by not providing a proper history of the matter. The court held that the balance of convenience favoured discharging the interim orders, as the Respondent had already removed the Claimant from the payroll and could not sustain her employment. The court further reasoned that any loss suffered by the Claimant could be compensated by damages if it is ultimately found that she was retired prematurely. Public interest and policy support retirement based on the age first provided to the employer unless there are compelling reasons to depart from this. Accordingly, the interim orders...
Court Disposition
Interim orders discharged and set aside; main suit to be heard on priority basis.
Orders
- The interim orders granted on 21st June, 2017 are discharged and set aside.
- The main suit to be heard on a priority basis on a date to be granted by the Principal Judge Employment & Labour Relations Court.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI
CAUSE NO. 1137 OF 2017
(Before Hon. Justice Mathews N. Nduma)
JANEROSE NJERI NDUATI....................................CLAIMANT
VERSUS
TEACHERS SERVICE COMMISSION...............RESPONDENT
R U L I N G
1. The issue in dispute in this suit is the retirement age of the Claimant, the Claimant stating that she was born on 24th February, 1960 whereas the Respondent states that the Claimant was born in 1957, the date of birth she provided the employer upon employment.
2. Interim orders were granted by the court on 21st June, 2017 restraining the Respondent from retiring the Claimant before the hearing and determination of the Notice of Motion dated 19th June, 2017. The Respondent filed a replying affidavit to the application on 12th July, 2017 opposing the application and stating that the Claimant was due to retire having been born in 1957.
3. Before this application was heard inter parties, the Respondentfiled an application dated 5thJuly 2017, seeking the interim orders granted on 21stJune, 2017 be set aside because, the Respondent’s/Applicant’s application system had automatically deleted the Claimant’s name from the payroll effective 1stJuly, 2017 and the Respondent had no funds therefore to sustain the Claimant in employment before her retirement age.
4. The court finds that there was material non-disclosure by the Claimant at the time the interim orders were granted. She did not provide proper history of the matter in the Notice of Motion and supporting affidavit.
5. The balance of convenience at this stage favours the discharge of the interim orders, pending the hearing and determination of the suit.
6. The claim will be satisfied by an award of damages if the court finally finds that the Claimant was retired prematurely by about three (3) years.
7. Public interest and policy is in favour of persons being retired on the basis of the age they first provided to the employer upon employment unless there are very compelling reasons to find otherwise.
8. Accordingly, the interim orders granted on 21st June, 2017 are discharged and set aside.
9. The main suit to be heard on a priority basis on a date to be granted by the Principal Judge Employment & Labour Relations Court.
Dated and Signed in Kisumu this 7th day of March, 2018
Mathews N. Nduma
Judge
Delivered and signed in Nairobi this 6th day of April, 2018
Maureen Onyango
Judge
Appearances
Mr. Omwenga for Claimant
Mr. ngere for Respondent
Anne Njung’e – Court Clerk