Jacinta Kibet v West Pokot County [2014] KEELRC 1508 (KLR)
The bottom line
#A Kenyan court ruled a county employee was retired unlawfully and too early, awarding her about Kshs 500,000 because the employer ignored its own records and skipped required notice.
What this practically means
#Executive summary
#Key legal issues
#Applicable law to a 2007 retirement
The Employment Act, 2007 does not apply; the governing framework was the common law, the repealed Employment Act cap. 226, the repealed Trade Disputes Act, the contract of employment and the applicable Collective Bargaining Agreement.
The retirement occurred in January 2007, before the Employment Act, 2007 commenced on 2 June 2008. Without an express retrospective provision, the new Act cannot govern. The Court therefore applied the pre-2008 statutory framework and the CBA between the Kenya Local Government Workers Union and the Association of Local Government Employers signed on 24 November 2005, including its notice and age-determination clauses.
Whether the retirement was premature and malicious
Based on the Council's own 2005 resolution adopting 1954 as the Claimant's year of birth, retirement in 2007 was premature; failing to consult the Claimant on the fresh Registrar of Persons date was reckless and malicious.
The Council's Finance, Staff and General Purposes Committee resolved on 4 October 2005 to adopt 1954 as the Claimant's year of birth, and the full Council adopted the resolution on 21 December 2005. The Respondent could not depart from that resolution without engaging the Claimant afresh. Although the Respondent acted on instructions from the Permanent Secretary based on Registrar of Persons records showing 1949, it did not consult the Claimant on the fresh date, which the Court held was a reckless act in disregard of her legal rights, amounting to malice.
Whether notice of retirement was necessary
Clause 29(1)(a) of the CBA mandatorily required 6 months' notice of retirement; failure to give it rendered the retirement unlawful.
The employment relationship was contractual and underpinned by the CBA. Clause 29(1)(a) required 6 months advance notice of retirement to an officer reaching 55 years, and clause 29(1)(b) dealt with doubts as to age by reference to the identity card and a Medical Officer of Health. The Respondent's contention that notice applied only to normal retirement at 55 was rejected because the Respondent knew it had adopted 1954 as the Claimant's year of birth.
Appropriate relief
Reinstatement impracticable; damages of 6 months' wages for malicious unlawful retirement plus 6 months' salary in lieu of notice awarded; other heads declined.
Following Court of Appeal authority, where malice is shown damages rather than compensation are awarded; the Court assessed damages at 6 months' wages (Kshs 249,878/-). Six months' salary in lieu of notice followed from the CBA term. Anticipatory salaries, anticipated leave allowance, Superannuation refunds and salary arrears failed for want of contractual/statutory foundation or evidentiary support.
Legal principles established
#- The Employment Act, 2007 does not apply retrospectively to conduct predating its commencement on 2 June 2008
- An employer cannot resile from its own resolution adopting an employee's year of birth without first engaging the employee afresh
- Malice in wrongful retirement is proved where the employer acts recklessly in disregard of the employee's legal rights
- At common law under the pre-2008 statutory framework, unlawful termination attracted damages where malice is shown, not statutory compensation
Court orders
#- 1.Respondent to pay the Claimant 6 months salary in lieu of notice of Kshs 249,878/-
- 2.Respondent to pay the Claimant 6 months wages as damages for unlawful retirement of Kshs 249,878/-
- 3.Total award of Kshs 499,756/-
- 4.Reinstatement, compensation for premature and unlawful retirement, payment of 5 years of service to retirement, leave allowance from 2007 to 2012, refund of Superannuation Fund deductions and salary arrears dismissed
- 5.Claimant to have costs of the Cause
- Jurisdiction invoked
- Jurisdiction under the Employment and Labour Relations Court Act following a trade dispute reported to the Minister for Labour; the judgment does not cite a specific provision
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jacinta Kibet v West Pokot County [2014] KEELRC 1508 (KLR)", Case Analysis (2014). Not stated in the judgment (Employment Cause; Amended Statement of Claim against West Pokot County). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/1508/eng@2014-10-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.