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ELRCDismissedEmployment and Labour Relations Cause (further amended claim dated 28th October 2018; claim dated 19th January 2018)· [2021] KEELRC 1633 (KLR)

Peter Cyrus Karinga v Nairobi City Water and Sewerage Company Limited [2021] KEELRC 1633 (KLR)

Employment and Labour Relations Court
28 May 2021
4,481 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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The Employment Court confirmed that an employer can lawfully retire an employee at the mandatory age of 60 when the written contract clearly says so, with proper notice given.

What this practically means

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Executive summary

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The Claimant, formerly a Meter Reader II with the defunct City Council of Nairobi seconded to the Nairobi City Water and Sewerage Company Limited, rose to Finance Budget Coordinator. His contract was renewed on 5th February 2015 for five years, but by letter of 13th March 2015 the period was amended to end on 2nd February 2018 when he would attain the mandatory retirement age of 60 years under Clause 8.27.4 of the Respondent's Human Resource Policy and Procedures Manual. A notice of retirement issued on 9th January 2017. He sued claiming a permanent injunction restraining breach of his contract, reinstatement, and an alternative aggregate of Kshs.218,763,400.04 in employment dues, benefits, pension contributions, allowances, gratuity, compensation and damages, pleading estoppel, legitimate expectation and reliance on Clause 4.3.2 of the HR Manual providing for contract renewals up to four terms. The Respondent maintained the retirement was lawful and mandatory. The court framed three issues: the nature and terms of engagement, the lawfulness of the separation, and entitlement to remedies. It held the last contract expired on 2nd February 2018; the amendment was not objected to; over a year's retirement notice was given; estoppel failed because no promise of renewal was made; and legitimate expectation did not apply. The distinguished authorities and the claimed remedies, including pension claims directed to the scheme managers and the Retirement Benefits Authority, all failed. The entire claim was dismissed with costs on 28th May 2021 (Maureen Onyango, J).

Key legal issues

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01

Nature and terms of the Claimant's engagement

Holding

The Claimant's employment was on contract terms and the last contract, as amended on 13th March 2015, was expressed to expire on 2nd February 2018

Reasoning

The Claimant was seconded from the Nairobi City Council in 2004, engaged as Payroll Officer Grade 5 in 2005, and his contract renewed severally. On 5th February 2015 it was renewed for five years, but by letter of 13th March 2015 it was amended to end on 2nd February 2018 upon attainment of mandatory retirement age of 60. The Claimant acknowledged receipt and raised no objection.

p. 7
02

Whether the separation was within the terms of the contract

Holding

Yes - the Claimant retired after attaining the mandatory retirement age as provided in the Human Resource Manual and the amended contract, having been given over a year's notice

Reasoning

Clause 8.27.4 of the HR Manual fixes mandatory retirement at 60 years with one year's notice. The letter of 9th January 2017 gave notice of retirement for 2nd February 2018. The amendment of the contract was not objected to, and the facts do not support estoppel or legitimate expectation since the Respondent made no promise of renewal.

p. 9
03

Entitlement to remedies

Holding

None of the extensive remedies sought were proved or were payable; the entire claim failed

Reasoning

Having found the separation lawful, the court held there was no entitlement to notice pay, injunction, reinstatement, future dues, improved qualification payments, pensions (a matter for the scheme managers or Retirement Benefits Authority), compensation, damages for discrimination, medallion or baggage allowance (already paid), or practicing certificate costs.

p. 9

Legal principles established

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  • Where a fixed-term contract is amended in writing with reasons given and the employee raises no objection, and the employee is given one year's notice of retirement on attaining mandatory retirement age, separation on retirement is in accordance with the terms of service
  • The doctrine of estoppel does not apply where the employer neither made a promise nor gave an assurance that a contract would be renewed
  • An employee who has notice of the date of retirement from the contract amendment and a reminder cannot rely on legitimate expectation

Court orders

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  1. 1.The entire claim is dismissed
  2. 2.Costs of the suit awarded to the Respondent

Authorities

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Legislation

  • Employment ActSections 7, 10 (including 10(5)), 35, 43 and 44 (as quoted from Henry Muema Kimanthi); Section 10(5)
  • Evidence ActSection 120 (general estoppel)
  • Retirement Benefits Actnot specified
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Constitution of KenyaArticle 159(2)(d) and Article 48

Cases cited (4)

  • Henry Muema Kimanthi v Nairobi City Water and Sewerage Company Limited
    ELRC Cause No. 1409 of 2015
  • Eng. Stephen Mbugua Chege
    Cause No. 1726 of 2017
  • Serah Njeri Mwobi v John Kimani Njoroge
    (2013) eKLR
  • Combe v Combe
    1951 (1) All England Law Reports 766 at 770
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Court Act over employment and labour relations disputes

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, "Peter Cyrus Karinga v Nairobi City Water and Sewerage Company Limited [2021] KEELRC 1633 (KLR)", Case Analysis (2021). Employment and Labour Relations Cause (further amended claim dated 28th October 2018; claim dated 19th January 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1633/eng@2021-05-28

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