Steel Makers Limited v Joshua Nzuki [2016] KECA 398 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that private-sector retirement ages are set by contract and conduct, not statute, so retirement can be a valid reason for termination.
What this practically means
#Executive summary
#Key legal issues
#Whether retirement on attaining an age not fixed by statute or contract can constitute unfair termination under Section 45 of the Employment Act
The retirement was not unfair termination; the employer proved a valid reason (retirement age of 58) and the employee failed to rebut it; where no retirement age is fixed by statute or contract, the matter falls to be determined from the parties' conduct as a contract question.
The letter of 20th June 2013 gave two months' notice and stated retirement on account of age as the reason. Since neither statute nor the appointment letter fixed a retirement age, the court looked to conduct: the employer had sought to retire the respondent at 58 in 2011 but granted a two-year extension at his request. The respondent, bearing the shifted burden, led no documentary evidence that the retirement age policy was false. Notice pay and gratuity claims were also disallowed, as at trial.
Allocation of the burden of proof under Sections 43 and 45 of the Employment Act in a retirement case
The employer discharged its burden the moment it demonstrated a valid reason for the termination; the onus then shifted to the employee to impeach that reason.
Under Section 45(2), a termination is unfair if the employer fails to prove a valid and fair reason and fair procedure. Once the employer proved the valid reason of retirement on attaining the company's retirement age, communicated by written notice two months in advance, the employee had to show the asserted policy did not exist. Mere assertion, without evidence or a report from the labour offices he claimed to have visited, was insufficient.
Legal principles established
#- Where the contract or statute does not provide a retirement age in private-sector employment, the retirement age is a matter of contract to be ascertained from the conduct of the parties.
- Once an employer shows a valid reason for termination, the burden shifts to the employee to prove that the reason was contrary to policy or otherwise invalid.
- A first appellate court must reconsider and evaluate the evidence itself while making due allowance for not having seen or heard the witnesses, and will not interfere with findings of fact absent no evidence, misapprehension of evidence, or wrong principle.
Court orders
#- 1.Appeal allowed
- 2.Judgment and decree dated 17th July, 2015 set aside
- 3.In lieu thereof, the respondent's claim in the trial court dismissed
- 4.Each party to bear their own costs both in the appeal and in the trial court
- On appeal from
- Employment and Labour Relations Court of Kenya at Mombasa
- E.L.R.C.C. No. 427 of 2013
- Jurisdiction invoked
- First appeal on law and fact from the Employment and Labour Relations Court
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kenafric Industries Limited v John Gitonga Njeru [2016] KECA 67 (KLR)[2016] KECA 67 (KLR)25 Nov 2016
Cite this brief
#Cite this brief
Caselaw, "Steel Makers Limited v Joshua Nzuki [2016] KECA 398 (KLR)", Case Analysis (2016). Civil Appeal No. 82 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/398/eng@2016-07-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.