Humphrey Mackori Nyagoe v Kenya Airports Authority & another [2021] KEELRC 336 (KLR)
The bottom line
#Kenya's Employment Court ordered Kenya Airports Authority to pay a retiree Kshs.3.3 million more because his pension and severance ignored years he served under the Public Service Commission.
What this practically means
#Executive summary
#Key legal issues
#Whether the preliminary objection and grounds of opposition on limitation and misjoinder remained open for determination
No - both issues were conclusively determined in the ruling of 1st November 2019, which was not appealed (the notice of appeal was abandoned) and no review was sought, so the decision is final
The court recounted its earlier ruling which found a continuing injury under section 90 of the Employment Act and held the 2nd Respondent a necessary and proper party. The 1st Respondent filed a notice of appeal which appears abandoned and there was no review application. The court therefore held it had no power to revisit the same issues, and the Respondents having otherwise not contested the allegations of underpayment and discrimination, proceeded to determine quantum and liability on the merits.
Whether the Petitioner's service was continuous from August 1977 across the Public Service Commission and the 1st Respondent
Yes - the service under the Public Service Commission was transferred to the 1st Respondent, giving continuous service of 26 years and 7 months
It was common ground the Petitioner was employed by the Public Service Commission in August 1977 and was seconded and then absorbed into the 1st Respondent with effect from 1st July 1995. Letters of absorption and long-service recognition, including a letter of 18th December 1977 acknowledging 20 years' service, and certificates of recognition, established continuity. Severance pay should therefore have been computed for 26 years and 7 months, not the 12 years and 8 months tabulated by the 1st Respondent.
What severance pay and pension adjustments were due
Severance shortfall of Kshs.2,276,365.60 awarded; pension (lump sum and monthly) to be readjusted to cover the full 26 years and 7 months
The letter of termination implied redundancy and severance was paid only for years served with the 1st Respondent, ignoring the transferred Public Service Commission years. The court computed severance at Kshs.152,953 per year for 26 years and 7 months (Kshs.4,066,000.60), less the Kshs.1,789,635 already paid. The claim for pension readjustment was a factual position borne out of the pleadings and uncontested, so the court directed readjustment accordingly.
Whether the Petitioner was discriminated against and entitled to damages
Yes - the 1st Respondent discriminated against the Petitioner; Kshs.1,000,000 general damages awarded
The Petitioner's tabular comparison showed that employees who left in 1990 and 2006 in similar circumstances received more favourable packages - a higher rate of pay per year of service, pay in lieu of notice, tax exemption and payment for the entire period served under both GOK and KAA. These facts were not contested. On that basis the court found discrimination by the 1st Respondent and awarded general damages of Kshs.1 million, substantially less than the Kshs.300,000,000 proposed by the Petitioner.
Legal principles established
#- Where an employee's service under the Public Service Commission is transferred or seconded to a state corporation which absorbs him, the service is continuous and severance pay must be computed on the entire period of service.
- A ruling conclusively determining limitation and misjoinder issues is final between the parties where unchallenged and not subject to review; the court has no power to revisit those issues at judgment stage.
- Pension underpayment constitutes a continuing injury such that the cause of action remains active and limitation does not bar the claim while the underpayment continues.
- Treating an employee who exits in similar circumstances less favourably than others in rate of pay per year, pay in lieu of notice and tax exemption constitutes discrimination meriting general damages.
Court orders
#- 1.Award of Kshs.2,276,365.60 being underpayment of severance pay
- 2.That the Petitioner's monthly and lump sum pension calculation by the 1st Respondent be readjusted to cover the entire 26 years and 7 months worked
- 3.Award of Kshs.1,000,000.00 as general damages for discrimination
- 4.Costs of the suit to the Petitioner
- 5.Interest from date of filing on the underpayment of severance pay and from date of judgment on the other heads
- Jurisdiction invoked
- Petition for enforcement of rights and freedoms under Articles 10, 27, 28, 29, 40 and 43 of the Constitution of Kenya, 2010 and Articles of the African Charter
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Humphrey Mackori Nyagoe v Kenya Airports Authority & another [2021] KEELRC 336 (KLR)", Case Analysis (2021). Not stated in the judgment (a petition; prior ruling delivered 1st November 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/336/eng@2021-11-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.