Paul Kiplangat Kirui v Nairobi Water & Sewerage Company Limited [2019] KEELRC 1247 (KLR)

Employment and Labour Relations Court

5 July 2019

BOByram Ongaya

770 words in judgment

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AI-assisted case brief

·~3 min to read original · ~4 min brief

The bottom line

A Kenyan employment court refused to stop an employee's retirement at 60, holding he was bound by the last contract he signed.

What this practically means

Executive summary

The claimant, employed under a fixed-term contract dated 09.10.2015 as Planning, Monitoring and Evaluation Coordinator, sought a temporary injunction restraining the respondent from prematurely retiring him on 16.04.2019 upon attaining 60 years, an age not stated in his contract. He argued the contract violated clause 4.3.2 of the respondent's HR Manual and was discriminatory. The respondent, through the replying affidavit of George Oketch, maintained the claimant had declared his date of birth as 16.04.1959, that the applicable 2005 manual gave the respondent discretion over the tenure of fixed-term contracts, that clause 4.3.2 only came into force in 2013, and that the renewed contract factored in the mandatory retirement age of 60 under clause 8.27.4 of the 2013 manual. The court held that the parties had voluntarily signed the last contract for a term of 3 years and 6 months, that the HR Manual prescribed a mandatory retirement age of 60, and that the parties appeared to have given effect to that retirement age, which the claimant undisputedly attained. The court found the parties bound by their own last contract of service as aligned to the mandatory retirement age, and that the claimant had failed to establish a prima facie case for a temporary injunction. The court further observed that the prayer, worded as pending hearing and determination of the application itself, could not survive the application's determination and would be in vanity. Accordingly, the application was dismissed with costs in the cause.

Key legal issues

Whether a prima facie case existed for temporary injunction against retirement at 60

Holding

No prima facie case; the claimant voluntarily signed a fixed-term contract of 3 years 6 months and the HR Manual's mandatory retirement age of 60 applied

Reasoning

The court found the parties voluntarily signed the last contract for 3 years and 6 months, the HR Manual prescribed mandatory retirement at 60, and the parties had given effect to that age without dispute that the claimant attained it. Parties are bound by their last contract of service, so the claimant failed to establish a prima facie case for the temporary injunction sought.

p. 2

Whether the drafted prayer was effective

Holding

The prayer was ineffective because it was worded as pending hearing and determination of the application itself

Reasoning

The court noted the injunction was sought pending hearing and determination of the application, so once the application was determined the order would have no continuing operation. This drafting defect independently supported dismissal of the application.

p. 2

Legal principles established

Parties are bound by their own last contract of service as aligned to the mandatory retirement age
A prayer for injunction framed as pending hearing and determination of the application itself cannot survive the determination of that application

Court orders

1.The application is dismissed with costs in the cause

Authorities

Legislation

Employment and Labour Relations Court Actsections 3, 4, 12 and 20
Employment and Labour Relations Court (Procedure) Rules 2016rules 14, 16, 27 and 28
Employment Actsection 26
Constitution of Kenya 2010Article 41
Judicature Actsection 10
High Court Practice and Procedure Rulesrule 3(1)

Jurisdiction invoked: Sections 3, 4, 12 and 20 of the Employment and Labour Relations Court Act; Article 41 of the Constitution of Kenya 2010

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Paul Kiplangat Kirui v Nairobi Water & Sewerage Company Limited [2019] KEELRC 1247 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1247/eng@2019-07-05

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