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ELRCDismissedCause No 88 of 2018· [2019] KEELRC 1396 (KLR)

Robert Kithinji Kiugu v AAA Growers Limited [2019] KEELRC 1396 (KLR)

Employment and Labour Relations Court
17 June 2019
NMNzioki wa Makau
2,036 words in judgment
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The bottom line

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A Kenyan court ruled that retiring a security manager at 55 was lawful because regulations still in force fixed that age, and all his claims failed.

What this practically means

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Executive summary

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The Claimant, employed as security manager on 1 March 2005 at a monthly salary of Kshs. 55,000, was retired by the Respondent with effect from 30 November 2017 by a letter dated 31 October 2017 citing attainment of the retirement age of 55 and company restructuring. He was then 56. He sued for compensation for unfair termination, salary to age 60, refund of uniform expenses, unpaid public holiday arrears and service pay. The Respondent defended the retirement as lawful under Regulation 17(2)(b) of the Regulation of Wages (Protective Security Services) Order fixing normal retirement at 55. The court framed two issues: whether the retirement was wrongful, unfair and unlawful, and whether the Claimant was entitled to the reliefs sought. Following Steel Makers Limited v Joshua Nzuki, it held that there is no mandatory statutory retirement age in the private sector and that absent a contractual provision the issue is one of contract. The Claimant's contract provided only for one month's notice, and the Respondent gave that notice. The court held that although the parent Act was repealed in 2007, Regulation 17(2)(b) is saved by section 24 of the Interpretation and General Provisions Act. The retirement was therefore lawful. All reliefs failed: damages fell away, the uniform refund and holiday arrears were unproved, and service pay was barred by section 35(6) of the Employment Act as the Claimant was an NSSF member. The suit was dismissed without orders as to costs.

Key legal issues

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01

Whether retirement of the Claimant at age 55 was wrongful, unfair and unlawful

Holding

Retirement was lawful; Regulation 17(2)(b) of the Regulation of Wages (Protective Security Services) Order fixing 55 as normal retirement age survived repeal of the parent Act and one month's notice was given

Reasoning

The court held that permanent contracts can still be terminated, entitling only damages if unprocedural. The Claimant's contract had no retirement age but required one month's notice. The Respondent relied on Regulation 17(2)(b) fixing normal retirement age at 55; though the parent Act was repealed in 2007, the Regulation is saved by section 24 of the Interpretation and General Provisions Act. One month's notice of retirement was given in line with the contract.

p. 2
02

Whether the Claimant was entitled to the reliefs sought

Holding

No reliefs were awarded; all heads of claim failed for want of proof or as barred

Reasoning

Having found the termination fair, no damages were payable. The uniform refund required strict pleading and proof and failed. The public holidays claim was unproved as the Claimant could not explain how he computed Kshs. 300,667. Service pay was barred because the Claimant was an NSSF member under section 35(6) of the Employment Act.

p. 2

Legal principles established

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  • There is no statutory mandatory retirement age in the private sector; absent a contractual provision, retirement age is a matter of contract ascertained from the parties' conduct
  • Subsidiary legislation issued under a repealed Act remains in force under section 24 of the Interpretation and General Provisions Act until revoked or repealed

Court orders

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  1. 1.The suit is dismissed
  2. 2.Dismissal is without orders as to costs

Authorities

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Legislation

  • Regulation of Wages and Conditions of Employment Cap 229 (Regulations of 1989)Section 17(2)(b)
  • Regulation of Wages (Protective Security Services) OrderRegulation 17(2)(b)
  • Employment ActSection 40
  • Employment ActSection 10(5)
  • Employment ActSection 35(6)
  • Interpretation and General Provisions Act Cap 2Section 24
  • Labour Institutions Actrepeal in 2007 (noted)

Cases cited (4)

  • Elizabeth Kwamboka Khaemba v BOG Cardinal Otunga High School Mosocho & 2 Others
    [2014] eKLR
  • Benson Githinji v The Attorney General & 4 Others
    [2014] eKLR
  • James Kabengi Mugo v Syngenta East Africa Ltd
    [2013] eKLR
  • Steel Makers Limited v Joshua Nzuki
    [2016] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act and related labour statutes (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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Later judgments citing this (6)

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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, "Robert Kithinji Kiugu v AAA Growers Limited [2019] KEELRC 1396 (KLR)", Case Analysis (2019). Cause No 88 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1396/eng@2019-06-17

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