[2014] KEELRC 896 (KLR)
The court found that the parties were bound by the provisions of clause 29(1)(c) of the collective agreement, which provides that where documentary evidence of an officer's age is obtainable or inconclusive, the assumed age is determined by the date in the identity card and the anniversary of the birthday is deemed...
Source-derived case information.
- Citation
- [2014] KEELRC 896 (KLR)
- Parties
- Applicant: Thomas Nyongesa Mabonga; Applicant: Silfano Lihanda Shibit; Respondent: Eldoret Water and Sanitation Company Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Cause 437 of 2013
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- claim dismissed
- Judges
- B Ongaya
- Legal Topics
- Retirement Age, Collective Agreement Interpretation, Termination of Employment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Thomas Nyongesa Mabonga
Applicant
Silfano Lihanda Shibit
Applicant
Eldoret Water and Sanitation Company Limited
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the compulsory retirement notices and terminal leave issued to the claimants were unlawful and illegal.
- 2 Whether the claimants were entitled to reinstatement or compensation for alleged premature retirement.
- 3 What is the effective date of the claimants' retirement under the applicable collective agreement.
Ratio Decidendi
The court found that the parties were bound by the provisions of clause 29(1)(c) of the collective agreement, which provides that where documentary evidence of an officer's age is obtainable or inconclusive, the assumed age is determined by the date in the identity card and the anniversary of the birthday is deemed to be 31st December. Since the claimants' identity cards indicated they were born in 1954, their 60th birthday was deemed to be 31st December 2013. The retirement notices issued by the respondent, effective up to 31st December 2013, did not breach the collective agreement. Therefore, the compulsory retirement was lawful, and the claimants were not entitled to reinstatement or...
Court Disposition
claim dismissed
Orders
- The claimants' suit is dismissed with costs.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE INDUSTRIAL COURT OF KENYA AT NAKURU
CAUSE NO. 437 OF 2013
THOMAS NYONGESA MABONGA.......................1ST CLAIMANT
SILFANO LIHANDA SHIBIT...................................2ND CLAIMANT
-VERSUS-
ELDORET WATER AND SANITATION COMPANY LIMITED.................................................................RESPONDENT
(Before Hon. Justice Byram Ongaya on Friday 28th March, 2014)
JUDGMENT
The claimants are Thomas Nyongesa Mabonga and Silfano Lihanda Shibit. The respondent is Eldoret Water and Sanitation Company Limited.
The claimants filed the memorandum of claim on 16. 12. 2013 through Onyinkwa & Company Advocates and prayed for judgment against the respondent for:
A declaration that the compulsory retirement notices given to the claimants and terminal leave are unlawful and illegal and the same are revoked.
The honourable court to issue an order reinstating the claimants back to employment until they attain their official retirement age.
In alternative, the court to order and compel the respondent to pay the claimants the one year salary and other dues owing them.
The honourable court to issue an order restraining the respondent, its agents and servants from further terminating the services of the claimants until they attain their official retirement age.
Costs and interest of the suit at court rates.
Any other relief that the honourable court may deem fit and just to grant.
The claimants filed an application on 16. 12. 2013 together with the supporting affidavit of the 1st claimant. The respondent filed the affidavits of Peris Cheruto on 19. 02. 2014 and on 28. 02. 2014. By the parties’ consent, the court made interim orders staying the implementation of the retirement notices issued to the claimants by the respondent.
The suit was fixed for hearing on 20. 03. 2014 and the parties opted not to call witnesses but to rely on the documents on record. Written submissions were filed for the parties.
It is not disputed that claimants were employed by the respondent. It is not also disputed that the claimants were born in 1954 as verified by their respective national identification cards. The specific dates of the claimants’ dates of birth were not indicated in the identity cards.
Clause 29(1) (a) of the collective agreement that applied to the claimants’ service states that the respondent could call upon an employee to retire any time upon attaining 60 years of age and a notice of retirement shall be given to the officer 6 months in advance of the 60th birthday and provided that an officer may exercise the option to retire on or after attaining the age of 55 years by giving 6 months notice. Clause 29 (1) (c) of the collective agreement states thus,
“Where documentary evidence of an officer’s age is obtainable or inconclusive, his assumed age will be determined by reference to the date in his identity card together with the recommendations of the medical officer of health, and in such case the anniversary of his birthday shall be deemed to be 31st December.”
Each claimant received the respondent’s notice of retirement dated 10. 06. 2013 conveying a six months retirement notice effective June, 2013 to 31. 12. 2013. Each claimant was also paid three months in advance for October, November and December, 2013 so as to proceed on a terminal leave up to 31. 12. 2013, the effective date of the retirement.
The only issue for determination in this case is to determine the effective date of the claimants’ retirement.
The court finds that the parties are bound by the provisions of clause 29 (1) (c) of the Collective Agreement. The age of the claimants is determinable by reference to the date indicated in their identity cards and the anniversary of the birthday shall be December, 31st. The identity cards show that they were born in 1954 and the anniversary of their birthday under the clause is 31st December, 1954; meaning as submitted for the respondent, to have been one year on 31st December 1954, they must have been born on or about 1st January, 1954. As submitted for the respondent, a person whose first birthday was 31st December, 1954 attained 60 years on 31st December, 2013 being 2013 – 1954 = 59 + 1 = 60 years. The court therefore finds that the claimants’ retirement notice and the subsequent retirement decision did not breach the provisions of the collective agreement on mandatory retirement age of 60 years.
Accordingly, the claimants’ suit is dismissed with costs.
Signed, datedanddeliveredin court atNakuruthisFriday, 28th March, 2014.
BYRAM ONGAYA
JUDGE