Henry Muema Kimanthi v Nairobi City Water and Sewarage Company Limited [2016] KEELRC 1393 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Effect of a written fixed-term contract on retirement age
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
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.
Primacy of contract over public service regulations
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
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.
Prima facie case for interlocutory injunction
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
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.
Legal principles established
#- 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
#- 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.The Claimant shall remain in the employment of the Respondent based on the existing employment contract commencing 4th June 2014
- 3.The Respondent shall meet the costs of the application
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment and labour relations disputes (Employment Act; contract of service dispute)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Omtatah v Kenya Revenue Authority Board of Directors & 2 others [2018] KEELRC 1689 (KLR)[2018] KEELRC 1689 (KLR)29 Jun 2018
Cite this brief
#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.