Damasius Musya Malinda & another v Daniel N. Mwangi & another [2018] KECA 171 (KLR)
The bottom line
#Kenya's Court of Appeal ordered the government to pay two retrenched civil servants unpaid pension and severance money, but rejected their bigger claims.
What this practically means
#Executive summary
#Key legal issues
#Entitlement to additional pension on abolition of office
Appellants entitled to additional pension under regulation 24 of the Pension Regulations, computed at one-sixtieth of pensionable emoluments for each completed three-year period, less excess payments and statutory/tax deductions.
The Leakey circular directed payment of additional pension to officers confirmed in permanent and pensionable employment; DW1 confirmed the entitlement and that it was reflected in lumpsum and monthly pension. The record showed no payment of additional pension despite the appellants receiving lumpsum pensions and, in Damasius' case, an excess of Kshs. 15,937.50.
Severance pay for permanent and pensionable employees retired on abolition of office
Appellants entitled to severance pay of 15 days' pay for each completed year of service under section 16A of the repealed Employment Act.
The Leakey circular was silent on severance pay for pensionable retirees; abolition of office falls within the Trade Disputes Act definition of redundancy, triggering the statutory severance entitlement. Severance pay is a statutory obligation not subsumed in the Safety Net Benefits.
Enhanced pension based on hypothetical service to age 55
Claim dismissed; pension accrues only for actual qualifying service up to the date of leaving the public service.
Regulation 15 of the Pensions General Regulations limits qualifying service to the period between first drawing salary and leaving the public service. Damasius left on 1st October 2000; the period to anticipated retirement at 55 cannot count as pensionable service.
Enhanced Golden Handshake
Claim dismissed; the enhanced figures derived from the Muthaura circular governing a later, separate VERS scheme that did not apply to the appellants.
The Leakey circular (2000) and Muthaura circular (2005) governed two distinct schemes. The appellants had already retired before the Muthaura scheme's implementation and could not benefit from its enhanced terms.
Exemplary and aggravated damages quantum
The award of four months' salary upheld; no basis to interfere established.
Applying the Kemfro Africa guidelines, the court found the learned judge took the circumstances into account and the amount was neither inordinately low nor high. The appellants did not specify why the award was unsatisfactory.
Competence of the appeal - notice filed out of time
Objection declined; an application to strike out not brought within 30 days of service of the notice/record of appeal is barred by the proviso to rule 84.
The respondent delayed until the appeal was fixed for hearing and filed no striking-out application, losing the right to object to the late filing.
Legal principles established
#- An employee whose office is abolished is declared redundant and is entitled to statutory severance pay of not less than 15 days' pay for each completed year of service; severance pay is a statutory entitlement distinct from safety-net or pension benefits.
- Only the period between the date an officer begins to draw salary in public service and the date of leaving the public service constitutes pensionable service; post-retirement periods do not attract pension.
- A retrenched officer retired on abolition of office is liable to an additional pension computed at one-sixtieth of pensionable emoluments for each completed period of three years, under regulation 24 of the Pension Regulations.
- An appellate court will not disturb an award of damages unless the trial judge took into account an irrelevant factor, left out a relevant one, or the amount is so inordinately low or high as to be a wholly erroneous estimate.
- Under the proviso to rule 84 of the Court of Appeal Rules, an application to strike out a notice of appeal or appeal may not be brought after thirty days from service of the notice or record of appeal; delay forfeits the objection.
Court orders
#- 1.The respondent to pay Damasius unpaid additional pension of Kshs. 33,468.75 together with interest at court rates from the date of retrenchment until payment in full, subject to statutory and applicable tax deductions, and deduction of Kshs. 15,937.50 already paid to him
- 2.The respondent to pay Daniel unpaid additional pension of Kshs. 34,462.50 together with interest at court rates from the date of retrenchment until payment in full, subject to statutory and applicable tax deductions
- 3.The respondent shall pay Damasius and Daniel severance pay of Kshs. 97,750 and Kshs. 92,098 respectively together with interest at court rates from the date of retrenchment until payment in full
- 4.The appellants, having partially succeeded, are entitled to half of the costs
- On appeal from
- Industrial Court (Employment and Labour Relations Court) at Nairobi
- Industrial Cause No. 550 of 2013 formally Civil Suit No. 1649 of 2001
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal Rules (appeal from the Industrial Court); appeal as of right on facts and law in a first appeal
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.
Cite this brief
#Cite this brief
Caselaw, "Damasius Musya Malinda & another v Daniel N. Mwangi & another [2018] KECA 171 (KLR)", Case Analysis (2018). Civil Appeal No. 152 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/171/eng@2018-11-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.