Robert Githua Githaka v SAAB Kenya Limited [2018] KEELRC 1836 (KLR)

Although the contract did not fix a retirement age and the Respondent's 2016 policy set 55, the Respondent could not explain why the Claimant still worked at 57, past that age. The pension scheme document stated a retirement age of 60, and the Respondent had in 2015 guaranteed the Claimant's loan repayments for six years, indicating contemplation of service beyond 57. These outward manifestations supported the Claimant's expectation of retirement at 60.

The Respondent's own policy required a notice of one year to prepare staff going on retirement. Instead, the Claimant, while preparing for a field deployment, was summoned and handed the retirement letter effective immediately. The court held that although the employer had managerial prerogative, the manner of its exercise converted a seamless exercise into a farce, warranting compensation under Section 49 of the Employment Act.

Applying the reasoning of Rika J in John Benson Githinji v Attorney General, the court declined to award the salary the Claimant would have earned to age 60, holding that employment relationships are not commercial contracts and the law presumes an employee is paid for actual work rendered. In view of the unfairness of the process, compensation of six months' salary was awarded, plus costs.