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ELRCAllowedNot stated in judgment· [2015] KEELRC 569 (KLR)

Jeremiah K Kandagor v Masaai Mara University [2015] KEELRC 569 (KLR)

Employment and Labour Relations Court
31 July 2015
537 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled an employer cannot cut your contracted retirement age without your agreement—unilateral changes to employment contracts are unlawful.

What this practically means

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Executive summary

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The Employment and Labour Relations Court at Nakuru delivered judgment on 31 July 2015 in a cause brought by a Claimant, then serving as Senior Assistant Registrar (Human Resources), against Masaai Mara University. On 3 June 2014 the Respondent issued a notice of retirement effective 30 June 2015, predicated on a Circular of 20 March 2009 issued by the Permanent Secretary, Office of the President, which raised the public sector mandatory retirement age from 55 to 60 years. The Respondent invoked the Circular to reduce the Claimant's retirement age from the expressly contracted 65 years to 60 years. The court found the variation had not been discussed with the Claimant or his Union, was based on a Circular from a third party to the employment relationship, and disadvantaged the Claimant. Relying on comparative authorities including Harlow v Artemis Ltd, Rigby v Ferodo Ltd and Security and Facilities Division v Hayes, the court held that a valid variation of an employment contract requires mutual consent, a principle consistent with Kenya's protection of employees against unfair labour practices. The court further observed that adverse effects on employees under such a Circular should have been underpinned by legislation, and doubted whether the Circular applied where a higher retirement age had been contractually agreed. The Claimant succeeded: the court declared the notice of retirement unlawful and unfair, ordered his retention in employment with all contractual benefits unless lawfully varied, and awarded him costs.

Key legal issues

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01

Lawfulness and fairness of unilateral variation of retirement age

Holding

The unilateral reduction of the Claimant's contractual retirement age from 65 to 60 years, without consultation with the Claimant or his Union, was unlawful and unfair.

Reasoning

The contractual terms of service expressly agreed a retirement age of 65 years. The Respondent varied this downwards unilaterally, relying on a Circular from a third party to the employment relationship, to the Claimant's disadvantage. Comparative authorities establish that valid variation requires mutual consent, a position consistent with Kenya's constitutional and statutory protection against unfair labour practices.

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02

Effect of a Circular issued by a third party

Holding

In so far as the Circular sought to affect certain employees adversely, it should have been underpinned by legislation; its applicability to agreed higher retirement ages was open to debate.

Reasoning

The notice of retirement was predicated on a Circular issued by the Permanent Secretary raising the public sector retirement age from 55 to 60 years. The court doubted whether the Circular's purport and object was to reduce a retirement age already contractually agreed at a higher figure, and held that adverse effects on employees required legislative underpinning.

p. 1

Legal principles established

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  • A variation to an employment contract must be by mutual consent to be valid or lawful; a unilateral variation to the employee's disadvantage is unlawful and unfair.

Court orders

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  1. 1.Declaration that the notice of retirement dated 3 June 2014 varying the terms of the Claimant's contract of employment was unlawful and unfair
  2. 2.That the Claimant be retained in employment with all benefits in accordance with the contract of employment unless lawfully varied
  3. 3.Claimant awarded costs
Jurisdiction invoked
Employment and labour relations jurisdiction; constitutional and statutory framework protecting employees from unfair labour practices

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, "Jeremiah K Kandagor v Masaai Mara University [2015] KEELRC 569 (KLR)", Case Analysis (2015). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/569/eng@2015-07-31

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