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ELRCPartially AllowedCause (Notice of Motion dated 13th August 2015) - Employment and Labour Relations Court, Nairobi· [2016] KEELRC 1393 (KLR)

Henry Muema Kimanthi v Nairobi City Water and Sewarage Company Limited [2016] KEELRC 1393 (KLR)

Employment and Labour Relations Court
20 January 2016
2,485 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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A Kenyan court stopped Nairobi Water from retiring an employee early, ruling that a signed five-year contract beats internal retirement-age policies.

What this practically means

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Executive summary

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The Claimant, formerly an employee of the City Council of Nairobi transferred to the Respondent in 2005, was issued with a five-year renewable contract of employment on 4th June 2014. On 15th January 2015 he was issued with a retirement letter requiring him to proceed on retirement on 28th August 2015, despite his contract expiring on 4th June 2019. He moved the court by Notice of Motion dated 13th August 2015 seeking an injunction restraining the Respondent from harassing, intimidating or discriminating against him, stopping his salary and loan check-offs, evicting him from the company house, or retiring him on any date other than 4th June 2019. The Respondent, relying on the affidavit of its Human Resource Manager Rose Kariuki-Mwaura, argued that as a public company owned by the Nairobi City County it is subject to Public Service Regulations and a human resource manual fixing the mandatory retirement age at 60, and that the three months' notice of retirement complied with the contract. The Claimant countered that the Respondent is a private company governed by its memorandum and articles of association, that the contract was mutually signed and cannot be varied to his disadvantage, and that the public service regulations do not apply. The court held that the written five-year contract, issued at the Respondent's instance, was binding and terminable by effluxion of time rather than by age, since no retirement age was set in the contract, and that public service regulations or human resource policy could not negate rights conferred under written law; termination at the instance of such a policy would amount to an unfair labour practice. The court found a prima facie case, declined to address the discrimination allegations at the interlocutory stage, allowed the application, restrained the Respondent from terminating the Claimant or affecting his dues, benefits and housing rights until the hearing of the main suit, confirmed the Claimant remains in employment under the existing contract, and awarded the costs of the application to the Claimant.

Key legal issues

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01

Effect of a written fixed-term contract on retirement age

Holding

The 5-year contract issued on 4th June 2014 was issued at the instance of the Respondent, is binding on the parties, and is terminable by effluxion of time and not by age since no retirement age was set in the contract

Reasoning

The letter of appointment offered a five-year renewable contract which the Claimant accepted. The contract contained no retirement age. Under sections 2, 7 and 10 of the Employment Act parties may contract for fixed-term employment, and the court gives the contract its ordinary meaning. Public service regulations or human resource policy cannot negate contractual rights conferred under written law.

p. 3
02

Primacy of contract over public service regulations

Holding

The Respondent's reliance on civil service regulations requiring retirement at 60 cannot override the written contract; termination contrary to the contract would be an unfair labour practice

Reasoning

The Respondent argued it was a public company subject to Public Service Regulations with a retirement age of 60. The court held that once the contract was issued it became binding and could only be terminated in accordance with the law under sections 35, 43 and 44 of the Employment Act; termination at the instance of a policy or regulation outside the law would be unfair labour practice.

p. 4
03

Prima facie case for interlocutory injunction

Holding

On the basis of the fixed-term contract the Claimant established a prima facie case justifying the injunction sought, without going into the merits of the main claim

Reasoning

The court applied the basic principles for grant of an injunction. The existence of an unexpired fixed-term contract gave the Claimant a prima facie case with the orders sought warranting issue pending hearing of the main suit. Allegations of discrimination were left for trial as they require specific evidence.

p. 4

Legal principles established

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  • A written fixed-term contract of employment confers rights and benefits that cannot be negated by a public service regulation or human resource policy contrary to written law permitting contracts of employment
  • The Court gives the ordinary meaning to a written contract of employment absent proof of ambiguity on its face
  • Termination of a fixed-term contract at the instance of a regulation or policy outside the law would amount to unfair labour practice

Court orders

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  1. 1.The Respondent is restrained through its agents and/or servants from terminating the Claimant from his employment or affecting his monthly dues, benefits and rights in employment, especially housing, until the hearing and determination of the main suit
  2. 2.The Claimant shall remain in the employment of the Respondent based on the existing employment contract commencing 4th June 2014
  3. 3.The Respondent shall meet the costs of the application

Authorities

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Legislation

  • Employment Actsection 2
  • Employment Actsection 7
  • Employment Actsection 10
  • Employment Actsection 35, 43 and 44
  • Labour Relations Actsection 2
  • Labour Institutions Actsection 2 (definition of contract of service)
  • Water Act No.8 of 2002general
  • Constitution of Kenyasection 33 of the 6th Schedule
  • Legal Notice No.101 of 12th August 2005general

Cases cited (5)

  • Abraham Gumba versus Kenya Medical Supplies Authority
    Cause No. 1073 of 2012
  • Wilfred Samson Mutua versus KWS
    Cause No. 890 of 2012
  • Hezekiel Oira versus KBC & Another
    Cause No. 299 of 2011
  • Kenya Plantation & Agricultural Workers union versus Kenya Cuttings Ltd
    Cause No. 282 of 2010
  • Chacha Mwita versus KEMRI
    Cause No. 1901 of 2013
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment and labour relations disputes (Employment Act; contract of service dispute)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Henry Muema Kimanthi v Nairobi City Water and Sewarage Company Limited [2016] KEELRC 1393 (KLR)", Case Analysis (2016). Cause (Notice of Motion dated 13th August 2015) - Employment and Labour Relations Court, Nairobi. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1393/eng@2016-01-20

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