Barnabas Musembi Mutua v Board of Management, Ngara Girls High School & another [2020] KEELRC 1545 (KLR)
The bottom line
#A Kenyan school wrongly retired its watchman before the legal age of 60 without proof or notice, and must pay him compensation and costs.
What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant's retirement was wrongful, unfair and unlawful
The retirement was unfair because the Respondents failed to prove the Claimant had attained the mandatory retirement age of 60 years and gave no notice
The court took judicial notice of circular OP.CBA.2/71 of 20th March 2009 setting the mandatory retirement age for public servants at 60 years. The retirement letters did not state the Claimant's age, so it was unclear whether retirement was intended at 50, 55 or 60. Under Sections 43 and 47(5) of the Employment Act the burden lay on the Respondents to prove a valid reason; they did not. No notice of the retirement date was given to the Claimant directly, denying him a chance to contest the age ground, whereas the Code of Regulations required at least three months' notice.
Whether the Claimant was entitled to compensation for the remainder of his service (5 years)
Refused; such an award would amount to unjust enrichment
The Claimant had been paid his service gratuity in full. Citing Pamela K. Butalanyi and D. K. Njagi Marete, the court held that employment remedies must be proportionate to the economic injury suffered and are not designed to enrich aggrieved employees. Payment of salary for the unworked remainder of the contract period would therefore not be allowed.
What compensation was due for the unfair termination
12 months' salary (Kshs.185,388) as statutory compensation plus Kshs.46,347 in lieu of the mandatory three months' notice under Regulation R20
Having found the retirement unfair, the court assessed compensation taking into account the three months' notice not given, the loss of employment for the remaining five years which the Claimant could not recoup given his age and the nature of his employment. Though the statutory 12-month cap could not fully compensate him, it was the maximum the court could award. Notice pay was awarded separately under Regulation R20.
Whether the Claimant was entitled to a Certificate of Service
Yes, under Section 51 of the Employment Act, 2007
Section 51 of the Employment Act entitles an employee to a certificate of service upon separation. The Claimant testified that although he requested one, none was issued, so the court ordered its issuance.
Legal principles established
#- An employer relying on attainment of mandatory retirement age as reason for termination bears the burden of proving that reason and the employee's age under Sections 43 and 47(5) of the Employment Act
- Employment remedies must be proportionate to the economic injury suffered and are not aimed at unjust enrichment
- The mandatory retirement age for public servants was reviewed from 55 to 60 years by circular OP.CBA.2/71 of 20th March 2009
Court orders
#- 1.Declaration that the retirement of the Claimant was unfair
- 2.Award of Kshs.231,735 (Kshs.185,388 as 12 months' compensation for unfair termination plus Kshs.46,347 pay in lieu of the mandatory notice under Regulation R20)
- 3.Refusal of compensation for the remainder of service of 5 years (Kshs.926,940)
- 4.Claimant to be issued with a Certificate of Service
- 5.Respondents to pay the Claimant's costs, with interest from date of judgment on the compensation and from date of filing suit on the pay in lieu of notice
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Barnabas Musembi Mutua v Board of Management, Ngara Girls High School & another [2020] KEELRC 1545 (KLR)", Case Analysis (2020). Cause No 1323 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1545/eng@2020-02-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.