[2019] KEELRC 1492 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT

AT NAIROBI

CAUSE NO. 2129 OF 2015

(Before Hon. Lady Justice Maureen Onyango)

KENYA UNION OF DOMESTIC, HOTELS,

EDUCATION INSTITUTIONS, HOSPITALS

AND ALLIED WORKERS (KUDHEIHA)..................CLAIMANT

VERSUS

BOARD OF MANAGEMENT,

GATAMAIYU HIGH SCHOOL.............................RESPONDENT

JUDGMENT

The Claim herein is filed by the Claimant union on behalf of SAMUEL GIOKO GATHUNGU, the grievant alleging failure and/or refusal by the Respondent to pay terminal benefits.

The Claimant seeks that the Court proceeds to enter judgment in his favour in the sum of Kshs.684,156/- which is the balance of the amount not duly paid to him upon his retirement having received Kshs.148,200/- from the Respondent herein.

The Claimant also sought to be awarded costs of the instant suit.

The Respondent herein despite being served with summons and the Claimant’s Statement of Claim failed to enter appearance or file its Response.

On 2nd October, 2018 when the cause was called for hearing there was no appearance for the Respondent while Tonge Yoya was present on behalf of the Claimant union. The cause therefore proceeded for hearing as an undefended cause. The Claimant gave sworn testimony.

Claimant’s Evidence

The grievant (CW1) in his testimony stated that he was employed by the Respondent on 1st September, 1994 following his application and successful interview for the position of carpenter/Artisan grade III and was duly issued with an appointment letter to that effect. He testified that his starting salary was Kshs.2,220/-.

CW1 stated he worked diligently and to the Respondent’s satisfaction as was evidenced by his promotion in the year 2007 with a salary increment to Kshs.3,720/-. He further testified that on 11th April 2007 he was promoted further from Job Group D to E.

CW1 further averred that when he reported on duty in 17th January 2014 he found a letter from the Respondent transferring him to the position of a groundsman to clean the school compound and cut the grass. He averred that these duties were exhausting given his age and he chose to apply for retirement having attained the age of 60 years and the Respondent accepted his request for retirement.

CW1 stated that his salary at the time of retirement was Kshs.7,800. CW1 further stated that at the time of separation he received a cheque of Kshs.148,200/- from the Respondent as his retirement benefit without any tabulation or explanation of how the Respondent arrived at the figure. He was only informed that the Respondent’s board had arrived at the figure. CW1 then reported the matter to the union.

CW1 urged the Court to allow his Claim as prayed.

The Respondent did not call any witness to rebut the Claimant’s evidence.

Claimant’s Submissions

In the written submissions the Claimant reiterated the contents of the Memorandum of Claim and the grievant’s oral evidence in Court.

It was the Claimant’s submission that the employment relationship between the grievant and the Respondent was governed by the CBA and was supplemented by the Deputy Prime Minister’s Secular Number MSPS 2/6/4A Vol X (2) dated 25th June, 2012 which realigned the salary structure for all civil servants.

It is submitted that it was unfair for the Respondent not to pay the retirement benefits as provided in the CBA and the Deputy Prime Minister’s secular. To fortify this argument the Claimant union relied on the Authority of Industrial Cause No. 1688 of 2014 Kenya Union of Domestic, Hotel, Education Institution & Hospital Workers Vs BOM Ndumberi Secondary School.

In conclusion the Claimant union urged the Court to allow the Claim as drawn as the grievant is entitled to the reliefs as sought in the statement of claim.

Determination

Having considered the pleadings, evidence, submissions and authorities cited, I am of the view that there is only one issue for determination which is whether the grievant is entitled to the reliefs sought in the Memorandum of Claim.

From the grievant’s letter of Appointment dated 21st September, 1994 it is clear that he was employed by the Board of Governors of Gatamaiyu High School. It is also clear from the attached payslips the Claimant was employed by board of the school and was not a civil servant.

The claim must fail therefore as the grievant is not covered by the Prime Minister’s circular that the Claimant union seeks to rely on. Furthermore on his retirement, the grievant received Kshs.148,200 as retirement benefits from the Respondent. He is therefore estopped from claiming further payments as he duly accepted the payment on 9th February 2015.

The Claim is accordingly dismissed with no orders as to costs.

DATED, SIGNED AND DELIVERED AT NAIROBI ON THIS 31ST DAY OF MAY 2019

MAUREEN ONYANGO

JUDGE