University of Nairobi v Sifuna (Appeal 22 of 2020) [2023] KEELRC 2258 (KLR)
The bottom line
#Kenya's Employment Court threw out a Kshs 3.24 million award for retirement on medical grounds, ruling compensation cannot extend to retirement age.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the trial Court had jurisdiction to hear and determine this matter
- 2.Whether the Appellant followed the fair procedure in terminating the Respondent's Employment
- 3.Whether the Respondent is entitled to the reliefs sought, proved and granted
Key legal issues
#Jurisdiction of the trial court over a pre-2010 employment suit
The trial court had jurisdiction because the matter was already part-heard when the Industrial Court became operational in 2011; transitional provisions allowed pending matters to be concluded.
Hearing of witnesses commenced on 20th October 2010, before the Industrial Court became operational by statute in 2011. Section 22 of the Sixth Schedule to the Constitution directed that pending matters proceed in the trial courts to conclusion. This aligns with the Etemesi decision that transitional provisions preserved courts' residual jurisdiction over pre-27th August 2010 suits. The ground of appeal on jurisdiction therefore failed.
Procedural fairness of retirement on medical grounds
The reason (ill health) was valid, and although the procedure was flawed (medical board set up without the Chief Medical Officer, no council minutes or resolutions, retirement letter not from the Council), the flaw caused no prejudice since retirement was inevitable.
The court accepted the medical evidence predating the suit and the respondent's failure to call his own doctor to dispute the Appellant's medical examiner. The applicable law was the appointment letter terms and the Public Service Commission Regulations 1965, under which the Medical Board was to be appointed by the Chief Medical Officer and the authorised officer was the Council. These steps were not followed, but the omission occasioned no prejudice as the respondent could no longer work due to his mental condition.
Entitlement to damages up to retirement age of 60
The award of Kshs 3,240,000/- in terminal dues up to age 60 was excessive and had no legal basis; under the repealed Employment Act (cap 226), compensation was limited to the notice period.
The cause of action accrued in 2002 when the repealed Employment Act (cap 226) governed. That Act provided no reinstatement remedy and capped compensation at salary equivalent to the notice period. Employment is not servitude and may end through illness or death; awarding salary to age 60 lacked legal foundation. This ground of appeal succeeded and the appeal was allowed.
Legal principles established
#- Matters partly heard before the operationalisation of the Industrial Court in 2011 could proceed to conclusion in the trial court under the transitional provisions of the Constitution.
- Termination must be both substantively justified and procedurally fair; where procedure is flawed but the outcome was inevitable and no prejudice was caused, the dismissal may stand on substantive grounds.
- Under the repealed Employment Act (cap 226), compensation for wrongful dismissal was limited to salary equivalent of the notice period, not salary up to retirement age.
Court orders
#- 1.Appeal allowed
- 2.Order of the Trial Court entering Judgment against the Appellant substituted with an order dismissing the suit in the Trial Court
- 3.Each party to bear their own costs of the Appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Chief Magistrate's Court, Milimani
- Milimani CMCC No. 6142 of 2004 (George Mabele Sifuna v University of Nairobi)
- Jurisdiction invoked
- First appellate jurisdiction over appeals from subordinate courts (employment matter); appeal against judgment of the trial magistrate
Relief refused
#Respondent's award of Kshs 3,240,000/- damages for wrongful termination (terminal dues up to age 60)
Award was excessive and lacked legal basis; under the repealed Employment Act (cap 226) the remedy was limited
Respondent's suit in the trial court
Dismissed upon allowing the appeal
Costs
Each party to bear their own costs of the Appeal
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In conclusion the Court hereby allows the Appeal and substitutes the order of the Trial Court entering Judgment against the Appellant with an order dismissing the suit in the Trial Court.
Considering the nature of the claim and the circumstances under which the respondent left employment, the Court will order that each party bears their own costs of the Appeal.
The transitional regulations under section 22 on the Sixth Schedule of the Constitution provides that those matters would proceed in the trial court up to conclusion without interfering with them.
employment contract is not servitude and any party to it can at any time terminate the same for any reason
the maximum amount of compensation for wrongful dismissal or unfair termination was the salary or wages equivalent of the notice period which could have been given had the employment been terminated normaly
the Court takes the view that the omission did not occasion the respondent any prejudice since it had become inevitable that the respondent could no longer work due to his mental condition
Issues in the judgment
#Internal inconsistency: the court finds the termination procedurally flawed but allows the appeal and dismisses the suit, while also stating one ground of appeal on procedure 'succeeds' yet finding no prejudice - the reasoning on the procedural ground is somewhat equivocal.
Typographical errors throughout, including 'fiawed' for 'flawed' and 'Plaintifi' for 'Plaintiff'.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "University of Nairobi v Sifuna (Appeal 22 of 2020) [2023] KEELRC 2258 (KLR)", Case Analysis (2023). Memorandum of Appeal dated 10th February 2016 (from Milimani CMCC No. 6142 of 2004). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2258/eng@2023-09-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.