Bank of Baroda (K) Limited v Banking Insurance & Finance Union (K) & another (Civil Appeal 440 of 2019) [2025] KECA 439 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that retirement age belongs in individual employment contracts, not collective bargaining agreements, unless the CBA expressly says so.
What this practically means
#Executive summary
#Key legal issues
#Whether retirement age is a negotiable item under the CBA
Retirement age is not a negotiable CBA item; it remains part of individual employment contracts to be agreed between employer and employee.
It was not in dispute that the CBA did not explicitly address retirement age as a negotiable item, and the recognition agreement listed retirement benefits and pension schemes as non-negotiable. The Court therefore agreed with the appellant that retirement age belongs in individual contracts, and held that the trial court erred in making it a CBA negotiable item, a misapplication of the law.
Whether the trial court could rewrite the terms of employment contracts
The trial court exceeded its jurisdiction by effectively rewriting the employment contracts when it introduced a negotiable retirement age.
The Court, relying on Margaret Njeri Muiruri v Bank of Baroda (Kenya) Limited, reaffirmed that courts cannot rewrite contracts freely entered into, though they may refuse to enforce unconscionable, unfair or oppressive contracts. Introducing the concept of a negotiable retirement age imposed terms not mutually agreed upon and was an error in law and an overreach.
Whether the appellant discriminated against some of its employees on retirement age
The Court did not make any express finding on discrimination, as the appeal was allowed on the negotiability and contract-rewriting grounds and the trial judgment set aside.
Although the trial court had found a two-tier retirement age discriminatory by reference to Article 27 of the Constitution and ILO Convention No. 111, the Court of Appeal's disposition allowed the appeal and set aside the entire trial judgment, thereby vacating the discrimination finding without a separate express determination on that ground.
Legal principles established
#- Retirement age, being part of individual employment contracts, is a matter for agreement between the employer and the employee and is not to be dictated by a CBA unless the CBA expressly provides for it.
- A court cannot rewrite or impose terms in an employment contract freely entered into between the parties; its duty is to interpret the law and assess whether contractual terms violate statutory or constitutional provisions.
Court orders
#- 1.Appeal allowed
- 2.Judgment of the trial court set aside
- 3.Appellant awarded costs of the appeal
- On appeal from
- Employment and Labour Relations Court
- Not stated in the judgment
- Jurisdiction invoked
- First appeal to the Court of Appeal against the judgment of the Employment and Labour Relations Court (statutory appeal; specific provision not stated in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Bank of Baroda (K) Limited v Banking Insurance & Finance Union (K) & another (Civil Appeal 440 of 2019) [2025] KECA 439 (KLR)", Case Analysis (2025). Civil Appeal No 440 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/439/eng@2025-03-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.