Kenneth Karisa Kasemo v Kenya Bureau of Standards [2013] KECA 486 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that a retirement notice does not stop an employer from ending employment earlier, paying only contractual notice.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the High Court erred in law in construing the effect of the two retirement/termination letters of 29th March 2005 and 8th April 2005
- 2.Whether the letter of 29th March 2005 divested the respondent of the power to terminate the appellant's services before 21st January 2006
- 3.Whether the appellant was entitled to salary and benefits for the period 9th April 2005 to 20th January 2006
Key legal issues
#Effect of the two letters (29th March 2005 and 8th April 2005)
The 29th March 2005 letter merely reminded the appellant of his mandatory retirement date under the Staff Pension Scheme; it did not alter his contractual terms or strip the employer of the power to terminate earlier.
The court read the letter of employment of 30th November 1982 and confirmation of 20th June 1984, both of which allowed termination by one month's notice or salary in lieu. To hold that the retirement notice bound the employer until January 2006 would rewrite the contract and lead to absurdities, since the employee could equally disengage prematurely. The employment relationship is not one where an employee is 'forced' upon an employer.
Measure of damages for premature termination of employment
Damages for wrongful termination under a contract with a notice clause are limited to the notice period's salary; the appellant, who admitted receiving six months' salary in lieu of notice, had been paid more than he deserved.
Following Rift Valley Textiles v Ogonda, Shimba Tourist Services v Kigani, Kenya Ports Authority v Otieno and Ronald Kimatu Ngeli v Ukulima Sacco, the court applied the settled rule that loss beyond the notice period is not recoverable because salary and benefits beyond termination are enjoyed only by those in actual employment.
Legal principles established
#- Where a contract of service provides for termination by notice or salary in lieu, damages for wrongful termination are limited to the notice period's pay, not the salary and benefits the employee would have earned up to a future retirement date.
- A letter reminding an employee of his mandatory retirement date does not divest the employer of the power to terminate the employment earlier on the contractual notice terms.
- A court cannot rewrite the contract between employer and employee; a notice of retirement does not bind the employer to retain the employee until the stated date.
Court orders
#- 1.Dismissal of the appellant's appeal with costs to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Mombasa
- H.C.C.A. No. 13 of 2010
- Jurisdiction invoked
- First appellate jurisdiction under the Civil Procedure Act (appeal from High Court on appeal from Chief Magistrate's Court)
Relief refused
#Declaration that the appellant was unlawfully retired and entitlement to dues and benefits up to 20th January 2006 (Kshs.1,553,221.75)
The letter of 29th March 2005 was a reminder of retirement date, not a contractual fetter; damages for termination under the contract are limited to notice pay, which was already exceeded
Costs
The appellant's appeal was dismissed with costs to the respondent.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Accordingly, we have no hesitation in dismissing the appellant’s appeal with costs to the respondent.
the letter of 29 th March, 2005 was simply reminding the appellant of his date of retirement. This letter did not divest the respondent of the power of terminating the services of the appellant before 21st January, 2006.
the law on employment does not normally envisage a situation where an employee is “forced” upon an employer (and vice versa)
If we were to agree with the appellant that the employer could not terminate his services upto and including 21st January, 2006, then this would be tantamount to rewriting the contract between an employee on an employer.
Issues in the judgment
#The judgment inconsistently dates the retirement notice letter, referring to 24th March 2005 in one passage and 29th March 2005 elsewhere
The judgment misdates the letter of confirmation as 20th June 1884 in one passage
The judgment misdates the letter of employment as 30th November 2006 in one passage
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenneth Karisa Kasemo v Kenya Bureau of Standards [2013] KECA 486 (KLR)", Case Analysis (2013). Civil Appeal No. 19 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/486/eng@2013-07-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.