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ELRCPartially AllowedCause No 2373 of 2017· [2019] KEELRC 2071 (KLR)

Samuel Omutoko Mabinda v Riley Services Limited [2019] KEELRC 2071 (KLR)

Employment and Labour Relations Court
15 March 2019
OMOnesmus N. Makau
3,072 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled retiring a worker at mandatory age was fair, but the employer still owed one month's pay for giving only 15 days' notice.

What this practically means

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Executive summary

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The Claimant, a night security guard employed by the Respondent from 26th March 1995 and confirmed in 1998, was retired on account of age with effect from 26th July 2017 at 58 years, having long passed the mandatory retirement age of 55 years prescribed by regulation 17(2)(b) of the Protective Security Service Wage Order. He sued seeking one month's pay in lieu of notice, underpayment of basic pay, unpaid overtime for four extra hours worked daily over 274 months, and twelve months' compensation for unfair dismissal. The Respondent admitted the employment but maintained the retirement was lawful, that he had requested to retire, and that all terminal dues including Kshs.73,350 in service gratuity had been paid. The court found that attainment of the mandatory retirement age was a valid and fair reason for termination, so the retirement was not unfair or unlawful. However, because the Respondent had extended the Claimant's service beyond retirement age, an implied contract terminable by notice arose, and under section 35(1)(c) of the Employment Act a monthly-paid employee was entitled to 28 days' notice. The 15 days' notice given breached the contract, though it did not render the retirement unfair. The court awarded one month's salary in lieu of notice of Kshs.14,420.90 but dismissed the claims for salary underpayment and unpaid overtime as exaggerated and lacking precise particulars, and declined compensation for unfair dismissal. Judgment was entered with costs and interest from filing, subject to statutory deductions.

Key legal issues

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01

Whether the retirement of the Claimant was unfair and unlawful under section 45 of the Employment Act

Holding

The retirement was not unfair or unlawful because attainment of the mandatory retirement age of 55 years was a valid and fair reason

Reasoning

The court applied section 45(2) of the Employment Act. Regulation 17(2)(b) of the Protective Security Service Wage Order prescribed 55 years as the retirement age for private security guards. The Claimant retired at 58, having worked beyond the retirement age at a client's request. The court found the reason for termination valid and fair, and dismissed the contention that the employer failed to prove incapacity.

p. 4
02

Whether the 15 days' retirement notice was adequate

Holding

The employer breached the contract by giving 15 days' notice instead of the one month required under section 35(1)(c) of the Employment Act

Reasoning

Extension of service beyond retirement age created an implied contract terminable by notice. The Claimant had a legitimate expectation of adequate notice under the Employment Act. Section 35(1)(c) requires 28 days' written notice for monthly-paid employees. The short notice did not render the retirement unfair, since retirement was inevitable, but constituted breach of contract entitling the Claimant to one month's pay in lieu of notice.

p. 4
03

Whether the Claimant was entitled to claims for underpayment of salary and unpaid overtime

Holding

The claims were dismissed as exaggerated, imprecise and indeterminate

Reasoning

The court found the overtime claim lacked precise particulars, disregarded leave and off days and varying salaries over 22 years, and echoed the authority in Kudheiha Workers that claimants must present a mathematically defensible and factually credible system of overtime pay. The salary underpayment claim lacked particulars of the period of underpayment.

p. 4

Legal principles established

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  • Where an employee's service is extended beyond mandatory retirement age, the employment continues on terms terminable by notice, and retirement requires adequate notice per section 35(1)(c) of the Employment Act
  • Retirement at the mandatory retirement age is a valid and fair reason for termination

Court orders

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  1. 1.Judgment entered for the Claimant against the Respondent for the sum of Kshs.14,420.90 being one month's salary in lieu of notice
  2. 2.Costs of the suit to the Claimant
  3. 3.Interest at court rates from the date of filing suit
  4. 4.The award is subject to statutory deductions

Authorities

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Legislation

  • Employment Actsection 45(1) and (2)
  • Employment Actsection 45(4)
  • Employment Actsection 46
  • Employment Actsection 35(1)(c)
  • Protective Security Service Wage Orderregulation 17(2)(b)
  • Wages Order for Security Servicesregulation 24(b)
  • Regulation of Wages (General) OrderRegulation 6

Cases cited (8)

  • Simon Muguku Gichigi vs. Taifa Sacco Society Limited
    I.C.N. 681 of 2012
  • Thomas De La Rue (Kenya) Limited vs. David Opondo Omutelema
    [2013] eKLR
  • Coastal Bottlers Limited vs. Kimathi Mithika
    [2018] eKLR
  • Kudheiha Workers vs. Charles Waithaka Goka t/a Apple Bees Pub and Restaurant
    [2013] eKLR
  • Chai Ngala & 7 Others vs. Smoky Hill Limited
    [2014] eKLR
  • Charles Nguma Maina vs. Riley Service Limited
    [2018] eKLR
  • Michael Kagoma Maina vs. Inspector General of Police & 2 Others
    [2014] eKLR
  • Republic v Principal Secretary Ministry of Mining Ex-parte Airbus Helicopters Southern Africa (PTY) Ltd
    [2017] eKLR
Jurisdiction invoked
First-instance employment claim under the Employment Act, 2007

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (7)

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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, "Samuel Omutoko Mabinda v Riley Services Limited [2019] KEELRC 2071 (KLR)", Case Analysis (2019). Cause No 2373 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2071/eng@2019-03-15

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