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ELRCAllowedNot stated in judgment (Memorandum of Claim filed 13 October 2014)· [2015] KEELRC 770 (KLR)

Jackson K Berege v Masaai Mara University [2015] KEELRC 770 (KLR)

Employment and Labour Relations Court
17 July 2015
RSRadido Stephen
1,327 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 force early retirement based on a government circular when your contract says otherwise.

What this practically means

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Executive summary

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The Claimant, employed by Narok University College in 2009 as Registrar on permanent and pensionable terms, had a retirement age of 65 set in his Terms of Service Document issued in November 2009. In May 2014, the Respondent, Masai Mara University, issued a memo to staff stating that the mandatory retirement age had been varied to 60 years pursuant to a Government Circular OP.CAB2/7A dated 20 March 2009, and on 3 June 2014 served the Claimant with a Notice of Retirement effective 30 June 2015. The single issue was whether that notice was lawful and fair. The Court held that a contract of employment can only be varied by mutual consent of the parties, and that the variation here was unilateral, effected through a Circular without consulting the employee or his union. Applying comparative authorities on variation of employment terms, the Court found the variation was both a breach of contract and unlawful. The Court further reasoned that the Circular's purpose was to raise the retirement age from 55 to 60 and harmonize it within the East African Community, not to reduce a higher agreed age, and that the Respondent had stretched the Circular improperly. It held that a circular or policy varying contracts to employees' detriment required legislative underpinning, given the employees' legitimate expectation based on their contracts. The Court declared the retirement notice unlawful and unfair, ordered that the Claimant be retained in employment with all contractual benefits unless mutually varied or varied by statute, and awarded costs to the Claimant. Judgment delivered in Nakuru on 17 July 2015 by Radido Stephen J.

Key legal issues

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01

Whether a Government Circular could unilaterally vary the retirement age agreed in the Claimant's contract

Holding

The unilateral variation based on the Circular was a breach of contract and unlawful; the notice of retirement was unlawful and unfair

Reasoning

The retirement age of 65 was mutually agreed in the Terms of Service issued in November 2009, after the Circular of 20 March 2009, so the Respondent was aware of the Circular but did not align its Terms. A contract can only be varied by mutual consent. The Circular sought to reduce the agreed retirement age to the detriment of the employee, which could only be lawful if underpinned by legislation, given the employee's legitimate expectation.

p. 3

Legal principles established

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  • A variation of an employment contractual term is lawful only with the consent of both parties, express or implied
  • The Government cannot vary an employment contract to the detriment of employees through a circular or policy document unless underpinned by legislation

Court orders

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  1. 1.Declaration that the Notice of Retirement dated 3 June 2014 varying the Claimant's contract of employment is unlawful and unfair
  2. 2.The Claimant be retained in employment with all benefits in accordance with terms of the contract of employment unless mutually varied by the parties or statute
  3. 3.Claimant to have costs
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (Employment and Labour Relations Court Act); not expressly cited in the judgment

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, "Jackson K Berege v Masaai Mara University [2015] KEELRC 770 (KLR)", Case Analysis (2015). Not stated in judgment (Memorandum of Claim filed 13 October 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/770/eng@2015-07-17

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