Marete v Teachers Service Commission (Cause 379 [N] of 2009) [2013] KEELRC 575 (KLR)
The bottom line
#A Kenyan court ruled that retiring an employee 'in the public interest' without giving real reasons or a hearing is unfair termination.
What this practically means
#Executive summary
#Key legal issues
#Whether retirement on public interest is governed by the termination provisions of the Employment Act 2007
Yes - retirement on public interest is involuntary termination instigated by the employer and falls under Section 43, placing the burden of proving the reason on the employer
Termination of employment is the overall term for the ending of a contract, whether voluntarily, involuntarily or consensually. Retirement on public interest is employer-instigated and results in termination of employment, so the Section 43 requirement of valid reasons applies. The employer must show objective and demonstrable grounds driven by a legitimate public policy objective, with fair procedure followed.
Whether the Claimant's retirement on public interest was lawful and fair
No - the retirement was unfair under Section 43 as read with Section 45 of the Employment Act 2007
The Respondent adduced no evidence of any complaint, investigation, notice to the employee or opportunity to respond. The letter of retirement cited no regulation and disclosed no process leading to the decision. Public interest was an empty termination reason, and the employer failed to discharge its burden of proving valid reasons, rendering the termination unfair.
Whether the Claimant was entitled to salaries and allowances for the remaining 11 years to mandatory retirement age
No - anticipatory remuneration was refused because the Claimant had mitigated his loss by securing judicial appointment
Remedies must be proportionate to economic injuries and observe the fair go all round principle. The Claimant no longer rendered services to TSC and was drawing judicial salaries from public funds; an award of 11 years' salaries would facilitate double remuneration. Following the Murgani decision, an able-bodied and employable claimant must mitigate and cannot sit back awaiting anticipatory remuneration.
What remedies flow from the finding of unfair termination
Compensation of 12 months' gross salary under Section 49 of the Employment Act, plus specific sums for travel and accommodation and 2 days' salary
Section 49 affords a fair, adequate and reasonable compensatory remedy, making general, punitive, exemplary and aggravated damages unsuitable. The travel and accommodation claims were supported by documentary evidence, and the retirement letter, effective 1st February 2009, was received on 2nd February 2009 when the Claimant worked two days, justifying payment for those days.
Legal principles established
#- Retirement on public interest is a form of involuntary termination of employment and falls within the requirements of Section 43 of the Employment Act 2007, requiring the employer to prove the reason for retirement
- A public employer relying on public interest must show objective and demonstrable grounds, adherence to fair procedure, and that the decision is legitimate and justifiable; a bare letter of retirement is insufficient
- Where the employer fails to prove the reason for termination, the termination is deemed unfair under Section 45 as read with Section 43 of the Employment Act 2007
- Employment remedies must be proportionate to the economic injuries suffered, not facilitative of unjust enrichment; aggrieved employees must mitigate and are not entitled to anticipatory salaries
Court orders
#- 1.The respondent shall pay to the Claimant a total sum of Kshs. 1,913,293, being compensation for unfair termination at 12 months' gross salary (Kshs. 1,847,820), travel and accommodation costs (Kshs. 54,475) and salary for 2 days worked in February 2009 (Kshs. 10,998), within 30 days of delivery of the Award
- 2.Each party to bear its own costs; no order on costs and interest
- Jurisdiction invoked
- Jurisdiction of the Industrial Court of Kenya over employment and labour relations disputes (Industrial Court Act), the matter having been referred to the Court by the Principal Judge
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Ngokonyo & 2 others v Telkom Kenya Limited[2025] KESC 75 (KLR)11 Dec 2025
- Mutuse v Proto Energy Limited (Cause E021 of 2022) [2025] KEELRC 1712 (KLR)[2025] KEELRC 1712 (KLR)12 Jun 2025
Cite this brief
#Cite this brief
Caselaw, "Marete v Teachers Service Commission (Cause 379 [N] of 2009) [2013] KEELRC 575 (KLR)", Case Analysis (2013). Cause Number 379 [N] of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/575/eng@2013-06-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.