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ELRCDismissedNot stated in the judgment as provided· [2021] KEELRC 708 (KLR)

Terry Muigai v SKF Kenya Limited [2021] KEELRC 708 (KLR)

Employment and Labour Relations Court
6 October 2021
NMNzioki Wa Makau
3,590 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court confirmed an employer can retire staff at 60 if the policy was agreed and applied equally to everyone.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent since 22nd June 1987 and serving as Quality and EHS Manager at retirement, was retired on 11th October 2015 upon attaining 60 years under a Retirement Age Policy effective 1st February 2014. She sued, alleging retrospective application of the policy, a policy designed to axe her, discrimination on racial and gender grounds, arbitrary application of the policy and workplace harassment. She sought a permanent order restraining her retirement until age 75 or, in the alternative, payment of all entitlements to age 75, with interest and costs. The Respondent defended the retirement as a regular application of a policy circulated to all employees and confirmed by the Claimant on 6th February 2014, applied uniformly to seven other employees retired at or above 60, and accompanied by a pre-retirement package of a paid year of leave. The Claimant testified that colleagues had been allowed to work past 60 and that she was never personally notified of the change in her terms; the Respondent's witness said due process was followed. The court framed the issues as whether the retirement was lawful and fair and whether discrimination was proved. Applying the ILO Convention No. 111 definition of discrimination, the court held the Claimant bore the burden of showing differential treatment and failed: the policy did not target her, she acceded to it, received preferential pre-retirement treatment, and her retirement was regular. The suit was dismissed with no order as to costs on 6th October 2021.

Key legal issues

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01

Whether the retirement of the Claimant under the Retirement Age Policy was unfair or forced

Holding

The retirement was regular; the policy was lawfully promulgated, circulated and acceded to by the Claimant, and she received preferential treatment through the pre-retirement package

Reasoning

The court read the policy and found it did not target the Claimant. She signed it on 6 February 2014, participated in a farewell party for retiring staff in October 2014, was offered a paid year of pre-retirement leave, and received a 3-month retirement notice. Other employees above 60 were retired under the same policy. Her retirement in October 2015 followed the policy and was therefore regular.

p. 4
02

Whether the Claimant was discriminated against on grounds of age, race or sex

Holding

No discrimination was proved; the Claimant failed to show differential treatment on any protected ground

Reasoning

Applying the ILO Convention No. 111 definition of discrimination, the court held the Claimant had the burden of showing she was treated differently on account of her age. The policy applied uniformly to all employees above 60, regardless of race, sex or age, and the Claimant herself acceded to it. No protected ground under section 5 of the Employment Act was established.

p. 4

Legal principles established

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  • Mandatory retirement age is a term of the contract of employment to be agreed between the parties or varied in accordance with section 10(5) of the Employment Act, per Ongaya J. in Michael Kaguma Maina v Kenya Police Service
  • A party cannot allege discrimination without specifying the protected ground relied upon
  • Under section 5(6) of the Employment Act the burden of disproving an allegation of discrimination lies with the employer, though the claimant must first show differential treatment

Court orders

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  1. 1.Suit dismissed
  2. 2.No order as to costs

Authorities

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Legislation

  • Employment Act, 2007section 5 (anti-discrimination)
  • Employment Act, 2007sections 9, 10 and 10(5) (particulars of contract and variation)
  • ILO Convention No. 111 - Convention Concerning Discrimination in Respect of Employment and Occupation, 1958Article 1

Cases cited (11)

  • Elizabeth Kwamboka Khaemba v BOG Cardinal Otunga High School Mosocho & 2 Others
    [2014] eKLR
  • Benson N. Irungu v Total Kenya Ltd
    [2015] eKLR
  • Michael Kaguma Maina v Kenya Police Service & 2 Others
    [2013] eKLR
  • Robert Githua Githaka v SAAB Kenya Ltd
    [2018] eKLR
  • Kenya University Staffs Union & Another v Masinde Muliro University of Science and Technology
    [2018] eKLR
  • Bakery Confectionery Food Manufacturing and Allied Workers Union Kenya v The Wrigley Co. (EA) Ltd
    [2013] eKLR
  • Greta Joshi v Pandya Memorial Hospital
    [2019] eKLR
  • Joshua Nzioka v Steel Makers Ltd
    [2015] eKLR
  • Kenya Union of Domestic Hotels, Educational Institutions and Allied Workers v M.P. Shah Hospital
    [2018] eKLR
  • Alfred Nyungu Kimungui v Bomas of Kenya
    [2013] eKLR
  • Storer v Manchester City Council
    [1974] 1 WLR 1403
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Court Act over employment disputes (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 (1)

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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, "Terry Muigai v SKF Kenya Limited [2021] KEELRC 708 (KLR)", Case Analysis (2021). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/708/eng@2021-10-06

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