M’Mugwika v Roy Parcel Services Limited (Cause 2157 of 2016) [2023] KEELRC 2165 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether retirement of the Claimant at age 70 was unfair and unlawful
The retirement was substantively justified on grounds of age and safety, but the employer failed procedurally by giving short notice; compensation awarded accordingly
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.
Whether the Claimant was underpaid against the Wages Regulation Orders
Claim failed for lack of proof
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.
Entitlement to terminal dues and Certificate of Service
Claimant awarded 11 days' salary for November 2013, service pay for 14 years, and a Certificate of Service
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.
Legal principles established
#- 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
#- 1.Salary for 11 days worked in November 2013 – Kshs. 5,566.60
- 2.Service pay for 14 years at 15 days for each completed year of service – Kshs. 106,272.25
- 3.2 months' salary as compensation – Kshs. 30,363.50
- 4.Costs of the suit
- 5.Certificate of service
- 6.Interest on sums in (a), (b) and (c) at court rates from date of judgment till payment in full
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act (first-instance employment claim)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.