Charles Kombe Charo v East African Portland Cement Company Limited [2022] KEELRC 669 (KLR)
The bottom line
#Kenya Power couldn't retire an employee mid-contract: the ELRC awarded him over Kshs.11 million for unfair termination despite an age dispute.
What this practically means
#Executive summary
#Key legal issues
#Whether the contract was vitiated by mistake induced by the Claimant's misrepresentation of his date of birth
The Respondent failed to establish that it entered the contract under a mistake; the employee record card is not an authoritative source, the Respondent had authoritative documents showing the correct date of birth, and in any event the Respondent did not act within a reasonable time.
The employee record card is an internal document, whereas the national identity card, passport and KRA PIN certificate were authoritative and in the Respondent's possession, giving it the wherewithal to discover and query the discrepancy within a reasonable time. The termination letter itself relied on the correct date of birth (1956) and made no reference to mistake or misrepresentation. Even if a unilateral mistake vitiated the contract, the Respondent delayed four years and three months, defeating equitable relief.
Whether the Claimant retired or was terminated
The Claimant was terminated unfairly; the fixed-term contract contained no retirement-age term, and the termination lacked both substantive justification and procedural fairness.
The contract provided its own termination mechanism (three months' notice) and made no provision for retirement at 60; the PSC Manual and the 2009 circular did not preclude contractual engagement of persons over 60. No evidence showed the contract lacked board/committee approval. The Claimant, on leave, was given no notice or hearing. Under Sections 43, 45 and 47(5) of the Employment Act, the Respondent failed to prove a valid reason and fair procedure, so the termination was unfair.
Entitlement to reliefs
Reinstatement and salary for the unexpired term refused; three months' notice pay, four months' compensation under Section 49(1)(c), gratuity at 31% and a certificate of service awarded.
Reinstatement was overtaken by events under Section 12(3)(vii) of the ELRC Act. Anticipatory earnings are not awardable. Notice pay followed from the contractual entitlement and the finding of unfair termination. In assessing compensation under Section 49(4), the Court weighed the length of service, the Claimant's contribution through misrepresenting his date of birth, the Respondent's blatant disregard of the contract, and the ambush posed by the purported retirement. Gratuity followed since the separation was not for gross misconduct.
Legal principles established
#- For a termination to be fair it must pass both the substantive justification and procedural fairness tests, and the employer bears the burden of proving the reason for termination.
- The primary document in ascertaining an employee's age is the national identity card or birth certificate, not information supplied by the employee for internal use in a record card.
- A party invoking mistake to vitiate a contract must act within a reasonable time; equity aids the vigilant.
- Claims for salary for the unexpired residue of an employment contract (anticipatory earnings) have no anchorage in law.
- General damages for breach of a contract of employment are not a remedy under Kenyan employment law; the statutory compensatory award under Section 49(1)(c) applies.
Court orders
#- 1.Claim for reinstatement dismissed
- 2.Claim for salary for the residual of the contract (Kshs.4,353,642/-) disallowed
- 3.Award of Kshs.1,451,214/- being three months' salary in lieu of notice under Section 49(1)(a) of the Employment Act
- 4.Award of Kshs.1,934,952/- being the equivalent of four months' salary as compensation under Section 49(1)(c) of the Employment Act
- 5.Award of gratuity of Kshs.7,737,873.048 under paragraph 14 of the employment contract
- 6.Respondent to issue a Certificate of Service to the Claimant
- 7.Judgment entered for the Claimant with costs
- 8.Interest at court rates from the date of judgment till payment in full
- Jurisdiction invoked
- Employment and Labour Relations Court Act, 2011 (original employment jurisdiction)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Automobile Association (AA) of Kenya & 3 others v Kahora (Appeal E018 of 2023) [2024] KEELRC 2865 (KLR)[2024] KEELRC 2865 (KLR)14 Nov 2024
Cite this brief
#Cite this brief
Caselaw, "Charles Kombe Charo v East African Portland Cement Company Limited [2022] KEELRC 669 (KLR)", Case Analysis (2022). Memorandum of claim dated 19th January 2017, filed 23rd January 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/669/eng@2022-02-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.