Joseph Ileli Kikumbu v Central Bank Of Kenya [2019] KECA 747 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that even an unprocedural retirement only attracts contractual notice pay under the old law — no extra damages.
What this practically means
#Executive summary
#Key legal issues
#Effect of a finding that retirement on health grounds was unprocedural where no medical board was constituted
Although the trial court found the retirement unprocedural for non-compliance with the Staff Rules and Regulations, the appellant had demonstrably suffered ill health over a long period, and the entitlement was limited to salary in lieu of notice, which was paid; the ground fails.
The Court reproduced the trial judge's finding that no evidence controverted the appellant's claim that the compulsory retirement procedure under Clause 6, requiring a medical board, was not followed. But the Court held the judge had in effect agreed with the appellant on procedural unfairness, and having found the appellant indisputably suffered prolonged ill health, awarded only 4 months' notice or salary in lieu, which was paid. Nothing more was due.
Applicable law and measure of damages for termination predating the Employment Act, 2007
The repealed Employment Act, Cap 226 governed, under which an employer terminating without notice was only required to pay wages or salary equivalent to the notice period; the 2007 Act cannot be applied retrospectively.
The cause of action arose before the Employment Act, 2007. Section 16 of the repealed Employment Act, Cap 226 required payment equivalent to the contractual notice period where termination occurred without notice. Relying on Mary Wakhabubi Wafula v British Airways PLC, the Court held that retrospective application of the 2007 Act in computing compensation for unlawful termination is impermissible, so the claim for up to 12 months' gross salary fails.
Whether general damages for distress, embarrassment, loss of reputation and related heads were recoverable under the then-applicable law
No such damages were awardable under the law applicable at the time of termination; the trial judge did not err in refusing them.
The appellant sought damages for fraud, illegalities, misrepresentations, breach of contract and warranties, embarrassment, distress, injurious falsehood and loss of reputation under the repealed Employment Act, Cap 226. Citing Sonye v Siaya Teachers Cooperative Savings and Credit Society & Another, the Court held that under the law in force at the time of termination such damages were not awardable, and the learned judge therefore committed no error in disallowing them.
Legal principles established
#- Where a court finds a retirement or termination unprocedural because the employer's own rules (including a medical board determination) were not followed, the remedy is limited to what the agreed contractual terms provide - such as salary in lieu of notice - and does not extend to general or aggravated damages under the law then in force.
- The Employment Act, 2007 does not apply retrospectively to causes of action arising before its enactment.
Court orders
#- 1.Dismissal of the appeal
- 2.No orders as to costs
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C. No. 1384 of 2002
- Jurisdiction invoked
- First appeal to the Court of Appeal from the High Court (Appeal from the Judgment and Decree of the High Court of Kenya at Nairobi (Odunga, J.) dated 28th May, 2012 in H.C.C.C. No. 1384 of 2002)
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.
- Murata Sacco Society Ltd v Banking Insurance and Finance Union (Kenya) (Civil Appeal 3 of 2020) [2025] KECA 173 (KLR)[2025] KECA 173 (KLR)7 Feb 2025
Cite this brief
#Cite this brief
Caselaw, "Joseph Ileli Kikumbu v Central Bank Of Kenya [2019] KECA 747 (KLR)", Case Analysis (2019). Civil Appeal No. 77 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/747/eng@2019-05-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.