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ELRCPartially AllowedCause No 2157 of 2016· [2023] KEELRC 2165 (KLR)

M’Mugwika v Roy Parcel Services Limited (Cause 2157 of 2016) [2023] KEELRC 2165 (KLR)

Employment and Labour Relations Court
19 September 2023
3,071 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court confirmed employers can retire aging drivers for safety reasons, but must give reasonable notice and pay all terminal dues.

What this practically means

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Executive summary

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The Claimant sued the Respondent for unlawfully and unfairly retiring him from employment. He averred he was employed on 6th July 1999 as a Heavy Commercial Driver and was retired by a Memo dated 17th October 2013 effective 1st November 2013, without notice or benefits, claiming one month's notice pay, 11 days' wages for November 2013, service pay for 14 years, and underpayment under the Wages Regulation Orders. The Respondent asserted the suit was time-barred under section 90 of the Employment Act, that the Claimant was a light-vehicle driver paid above minimum wage, and that it retired him at 70 years due to advanced age, failing sight and danger to road users. The court found no statutory mandatory retirement age in the private sector, the matter falling within contract and the parties' conduct. The retirement was substantively justified but the employer erred in giving short notice, warranting compensation fixed at 2 months' salary given the service pay awarded and the Claimant's dishonesty about his age. Underpayment failed for want of proof, the Claimant having driven a 5-tonne vehicle at wages exceeding the statutory minimum. Judgment was entered for the Claimant for 11 days' salary (Kshs. 5,566.60), service pay of Kshs. 106,272.25, 2 months' compensation (Kshs. 30,363.50), costs, a Certificate of Service, and interest at court rates from the date of judgment.

Key legal issues

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01

Whether retirement of the Claimant at age 70 was unfair and unlawful

Holding

The retirement was substantively justified on grounds of age and safety, but the employer failed procedurally by giving short notice; compensation awarded accordingly

Reasoning

There is no statutory mandatory retirement age in the private sector; retirement terms fall within contract and conduct of parties. The Respondent engaged the Claimant past its own retirement age and retired him citing age-related safety concerns, which was a valid reason. However, the memo notice was under one month and the Claimant left the same day, so the process lacked decorum. Compensation of 2 months' salary was awarded, reduced for the Claimant's dishonesty about his age.

p. 5
02

Whether the Claimant was underpaid against the Wages Regulation Orders

Holding

Claim failed for lack of proof

Reasoning

The Respondent's logbook showed the Claimant drove a 5-tonne truck, not a heavy commercial vehicle as he alleged. The salary of Kshs. 15,181.75 exceeded the applicable statutory minimum wage of Kshs. 14,563 for a medium-sized vehicle. The Claimant bore the burden of proof on a balance of probability and did not discharge it, invoking sections 107, 108 and 109 of the Evidence Act.

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03

Entitlement to terminal dues and Certificate of Service

Holding

Claimant awarded 11 days' salary for November 2013, service pay for 14 years, and a Certificate of Service

Reasoning

The Respondent asserted it paid all dues but produced no evidence of payment. The Claimant therefore succeeded on the terminal dues he proved: 11 days worked in November 2013 and service pay for 14 completed years at 15 days per year, together with a Certificate of Service which the Respondent conceded was readily available.

p. 5

Legal principles established

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  • Even where there is no set retirement age in the private sector, an employer retiring an employee must give reasonable notice and ensure a dignified exit; short notice is an error
  • An employee's dishonesty in pleadings justifies reduction of compensation for unfair termination

Court orders

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  1. 1.Salary for 11 days worked in November 2013 – Kshs. 5,566.60
  2. 2.Service pay for 14 years at 15 days for each completed year of service – Kshs. 106,272.25
  3. 3.2 months' salary as compensation – Kshs. 30,363.50
  4. 4.Costs of the suit
  5. 5.Certificate of service
  6. 6.Interest on sums in (a), (b) and (c) at court rates from date of judgment till payment in full

Authorities

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Legislation

  • Employment Actsections 43, 45, 45(2), 49(1)(c), 90
  • Regulation of Wages (General) (Amendment) Order, 2013Legal Notice LN-197
  • Regulation of Wages (General) (Amendment) Order, 2012Legal Notice 71
  • Traffic Act, Cap 403 Laws of Kenyasection 2
  • Evidence Act, Cap 80sections 107, 108, 109

Cases cited (5)

  • Jane Mokeira Mogoi v Nyamira County Public Service Board
    [2017] eKLR
  • James Kabengi Mugo v Syngenta East Africa Limited
    [2012] eKLR
  • Charles Mwaniki Muchiri v Coastal Kenya Enterprises Limited
    [2016] eKLR
  • Steel Makers Limited v Joshua Nzuki
    [2016] eKLR
  • East African Airways v Knight
    [1975] EA 165
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (first-instance employment claim)

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, "M’Mugwika v Roy Parcel Services Limited (Cause 2157 of 2016) [2023] KEELRC 2165 (KLR)", Case Analysis (2023). Cause No 2157 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2165/eng@2023-09-19

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