George Mwangi Kabango v Kimathi University College of Technology [2013] KEHC 1710 (KLR)

REPUBLIC   OF   KENYA

IN THE HIGH COURT OF KENYA AT NYERI

CAUSE NO. 3 OF 2012

(Nairobi Cause No. 3 of 2012)

GEORGE MWANGI KABANGO..........................................CLAIMANT

VERSUS

KIMATHI UNIVERSITY COLLEGE

OF TECHNOLOGY........................................................RESPONDENT

JUDGMENT

The claimant in this suit claims that by a letter dated 25th April, 2006, the respondent wrote to him requesting that he takes early retirement.  In that letter the respondent informed him that he would be paid his retirement benefits based on his current salary.

He avers that he never applied for early retirement nor was there a good reason for retiring him early.  The claimant therefore sought the intervention of the court that he be paid Kshs.1,075,256/45 on account of retirement benefits.

The respondent in its defence filed on 25th November, 2010 denied virtually every claim raised by the claimant and averred that any benefit if was due to the claimant was settled upon his retirement.

When this matter came up for hearing on 19th June, 2003, Counsel for the parties informed the court that they would adopt their pleadings and documents without adducing oral evidence.  They therefore proceeded to prepare and file submissions.

Even though the respondent in its defence had earlier denied the employment relationship with the claimant, this does not seem to be the case in submissions filed by counsel.  The submissions only addressed the issue of the claimant's terminal benefits.  The court will therefore take it as the only point in dispute.  The heads of claim are therefore service pay and notice pay.

Regarding service pay, it has been submitted by the claimant that by the time he was asked to retire, he had worked for 25 years, while the respondent places his duration of work at 24 years 2 months.  The rate of calculation has been placed by the claimant at 21 days per each year worked while the respondent places it at 15 days for each year worked.  The respondents appeared to have placed their calculation on the statutory minimum while the claimant talks of what is reasonable in the circumstances.

The collective bargain agreement between the claimant's Union and respondent's predecessor, places service gratuity at 16 days pay for each completed year of service.  This document was filed as one of the documents in support of the claimant's case hence in absence of any other evidence to the contrary, will be adopted by the court.

The claimant is therefore awarded service gratuity at the rate of 16 days pay for each year of service for 25 years.

Regarding notice pay,  the CBA provides that an employee who has completed 15 years continuous service or more shall be entitled to four months notice except in cases of gross misconduct.  The claimant was sent on retirement.  No allegation of misconduct was made against him hence there would be no reason to deprive him the benefit of this clause.

In conclusion the court awards the claimant as follows:

Kshs.

16 days salary for each year of service for 25 years.....  563,200

Four months salary in lieu of notice................................ 146,528

709,728

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3.  Interest at court rates and costs.

4.  This amount shall be subject to statutory deductions.

It is so ordered.

Dated at Nyeri this 25th day of October, 2013.

NELSON ABUODHA J.

JUDGE

Delivered in open Court in the presence of Mr. Ndirangu for the Claimant and in the absence of Ms. Ndumia for the Respondent.

NELSON ABUODHA J.

JUDGE