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Court of AppealDismissed

Kibet v Clerk (Civil Appeal 261 of 2015) [2021] KECA 280 (KLR)

Court of Appeal of Kenya
3 December 2021
2,278 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed your national ID card beats other records in proving your age for retirement disputes.

What this practically means

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Executive summary

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This was a first appeal to the Court of Appeal against the judgment of Radido J delivered on 31st October 2014 in Nakuru ELRC Case No. 227 of 2013. The appellant, a typist employed by the respondent in 1972, was retired on 22nd January 2007 on grounds of having attained retirement age, based on an Immigration Ministry letter giving her date of birth as 15th February 1949. The trial court found the retirement premature and unlawful but dismissed most heads of claim, awarding only 6 months salary in lieu of notice, 6 months wages as damages for unlawful retirement, and costs. The appeal was disposed of on two issues: whether the retirement was premature and unfair, and what relief was available. The Court, exercising its first-appeal duty to re-assess the evidence, upheld the finding that the appellant was born in 1954 per her national Identity Card, which superseded the conflicting Immigration Ministry record absent a birth certificate, making the 2007 retirement premature, wrongful and unfair. On relief, the Court held reinstatement impracticable given the appellant's age (67), that the compensation awarded was adequate for a premature retirement tantamount to unfair dismissal without notice, and that claims for 5 years' service pay and post-termination leave allowance were unrecoverable. No finding was made on unremitted superannuation deductions or salary arrears for want of evidence. The Court dismissed the appeal, upheld the trial court's judgment, and ordered each party to bear its own costs.

Key legal issues

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01

Whether the appellant's retirement on age grounds was premature, wrongful and unfair

Holding

Yes - the appellant was born in 1954 per her ID Card, and should have retired in 2009; her 2007 retirement was premature and therefore wrongful and unfair.

Reasoning

The appellant exhibited her national Identity Card showing a 1954 year of birth; in the absence of a Certificate of Birth this was the only documentary evidence of her year of birth. The Court held the ID Card superseded the Immigration Ministry letter stating a 1949 date of birth, and affirmed the trial court's finding of fact that retirement at 55 should have occurred in 2009.

p. 4
02

Whether reinstatement was an available remedy

Holding

No - reinstatement would be impracticable given the appellant's age of 67 at the time of the appeal.

Reasoning

Section 49(4)(a) to (m) of the Employment Act, 2007 includes reinstatement among remedies for unlawful and unfair termination. Relying on the New Zealand authority, the Court held practicability involves balancing the parties' interests with regard to the past and especially the future. The appellant's advanced age made reinstatement inappropriate even if otherwise practicable.

p. 5
03

Whether the compensation awarded by the trial court was adequate

Holding

Yes - 6 months salary in lieu of notice plus 6 months wages as damages was adequate compensation for premature retirement tantamount to unfair dismissal without notice.

Reasoning

The Court treated the premature retirement as an unfair dismissal without notice and held the 12 months' worth of salary awarded (6 months in lieu of notice plus 6 months as damages) was adequate. Retirement benefits remained recoverable under the contributory superannuation fund, but no finding could be made on unremitted deductions or salary arrears for want of evidence.

p. 5

Legal principles established

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  • On a first appeal, the Court must analyse and re-assess the evidence on record and reach its own conclusions, while making due allowance for the fact that it did not see or hear the witnesses.
  • In the absence of a Certificate of Birth, a national Identity Card is the superior documentary evidence of a person's year of birth for retirement purposes, superseding conflicting records from other state agencies.
  • Reinstatement after unlawful dismissal requires a balancing of the interests of the parties and the justice of their cases with regard not only to the past but more particularly to the future, and will be refused where impracticable, including on grounds of age.

Court orders

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  1. 1.The appellant's appeal is dismissed, except for the sums awarded by the trial court
  2. 2.The judgment and orders of the Employment & Labour Relations Court of Kenya at Nakuru (Radido, J) dated 31st October 2014 are upheld
  3. 3.The parties do bear their own costs
On appeal from
Employment & Labour Relations Court of Kenya at Nakuru
ELRC Cause No. 227 of 2013
Jurisdiction invoked
First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction (Employment & Labour Relations Court appeals), the judgment not specifying the enabling provision

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kibet v Clerk (Civil Appeal 261 of 2015) [2021] KECA 280 (KLR)", Case Analysis (2021). . Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/280/eng@2021-12-03

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.