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ELRCPartially AllowedCause No. 1964 of 2014 (originally H.C.C.C No. 294 of 2009, Nairobi)· [2021] KEELRC 1027 (KLR)

Zainab Bintifundi Kiwasi [Suing in her capacity as the Personal Representative of Harry Kitao Stephens] v TPS Eastern Africa Limited [2021] KEELRC 1027 (KLR)

Employment and Labour Relations Court
10 September 2021
5,059 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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What this practically means

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Executive summary

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Harry Kitao Stephens, employed by TPS Eastern Africa Limited from 1974 to 2006 and retired on medical grounds effective 1st August 2006, sued claiming irregular and premature retirement, unpaid statutory deductions, leave, allowances, pension, severance pay and general damages. He died in 2018 and his widow, Zainab Bintifundi Kiwasi, was substituted. The suit, initiated in the High Court in 2009 and transferred to the E&LRC in 2014, took 12 years to conclude - a delay for which the Court apologized, noting that Section 38 of the Persons with Disabilities Act requiring expedited hearing was not given due regard. The Court found retirement on medical grounds lawful and medically justifiable: medical reports attributed the Claimant's functional blindness to type 2 diabetes since 1992, not to the nature of his work, and the Respondent had financed two specialized treatment trips to India under the medical scheme and reasonably accommodated him. However, the 4 days' notice of retirement was held insufficient and unlawful, contrasted with 4 months' notice given to a comparator employee, Charles Obonyo, in 1995. The Court declined anticipated salaries, N.S.S.F refund, general damages and interest from retirement. It awarded the terminal benefits offered in the retirement letter (50 days' annual leave, 2 years' leave allowance, mileage, home entertainment allowance and 6 months' salary as retirement gift), 4 months' salary in lieu of notice, and gratuity at 21 days' salary for each of 32 years of service, with costs to the Claimant and interest at court rates 30 days after judgment.

Key legal issues

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01

Whether medical retirement was lawful

Holding

Retirement on medical grounds was lawful and medically justifiable; the Claimant was reasonably accommodated

Reasoning

Medical records showed the Claimant suffered diabetes since 1992 culminating in functional blindness; the illness was not occupational. The Respondent financed treatment in India twice under the medical scheme and offered terminal benefits. The Claimant did not plead alternative roles or assistive devices. Medical evidence showed nothing more could be done. Only the notice was defective.

p. 6
02

Adequacy of notice of retirement

Holding

The 4 days' notice was insufficient and unlawful

Reasoning

A comparator employee, Obonyo, who worked 18 years and retired 11 years earlier, was given 4 months' notice. The Respondent intended to retire the Claimant at the end of 2006, which would have afforded at least 4 months' notice. Knowledge that retirement was on medical grounds does not excuse short notice.

p. 6
03

Reasonable accommodation of a disabled employee

Holding

The Claimant was reasonably accommodated and no breach established

Reasoning

The Court considered reasonable accommodation as requiring exploration of alternative responsibilities, work environment adjustment and assistive devices. The Claimant neither pleaded nor evidenced alternative roles or visual aids. The Respondent facilitated two treatment trips to India, did not object to long sick offs, and relied on medical advice that the Claimant could not continue.

p. 5
04

Entitlement to gratuity for 32 years of service

Holding

Gratuity at 21 days' salary per completed year awarded, following the Obonyo precedent

Reasoning

Termination predated the Employment Act 2007 and Section 36(6) was not in force. Obonyo received gratuity of 21 days' salary per year plus 6 months' retirement gift. There was no explanation why the Claimant, who served almost twice as long, was denied gratuity; the 6 months' gift could not be the totality of recognition of 32 years' service.

p. 6

Legal principles established

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  • An employer retiring an employee on medical grounds must accord reasonable notice and consultation
  • An employer should consider reasonable accommodation before retiring an employee on medical grounds
  • Deducted but unremitted statutory obligations should not revert to the individual employee; payment should be pursued with the relevant statutory body

Court orders

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  1. 1.Respondent to pay terminal benefits as offered in the letter of retirement, including annual leave pay of 50 days; leave allowance for 2 years at Kshs. 4,000 per year; mileage claim for the leave period; home entertainment allowance for the leave period; and 6 months' basic salary as retirement gift
  2. 2.Respondent to pay 4 months' salary in lieu of notice
  3. 3.Respondent to pay gratuity at the rate of 21 days' salary for each of the 32 completed years of service
  4. 4.Costs to the Claimant
  5. 5.Interest on the principal sum at court rates, chargeable after the end of 30 days from the date of delivery of the Judgment

Authorities

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Legislation

  • Persons with Disabilities ActSection 38
  • Employment ActSection 36[6]

Cases cited (2)

  • Juliet Mwongeli Muema v. Smollan Kenya Limited
    [2019] e-KLR
  • Kenya Plantation and Agricultural Workers Union v. Rea Vipingo Plantations Limited & Another
    [2015] e-KLR
Jurisdiction invoked
Jurisdiction as transferred from the High Court on jurisdictional grounds; employment and labour relations disputes under the E&LRC's statutory jurisdiction

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Zainab Bintifundi Kiwasi [Suing in her capacity as the Personal Representative of Harry Kitao Stephens] v TPS Eastern Africa Limited [2021] KEELRC 1027 (KLR)", Case Analysis (2021). Cause No. 1964 of 2014 (originally H.C.C.C No. 294 of 2009, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1027/eng@2021-09-10

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