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ELRCPartially AllowedCause No E516 of 2021· [2023] KEELRC 2670 (KLR)

Mutia v Peter Mulei & Sons Co Ltd (Cause E516 of 2021) [2023] KEELRC 2670 (KLR)

Employment and Labour Relations Court
30 October 2023
JGJacob Gakeri
3,764 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court ruled that forcing a 58-year-old employee to retire without valid reason or fair procedure was unfair termination, awarding four months' salary.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent from 1st March 2017 and retained on permanent and pensionable terms after a successful six-month contract, was retired by a notice dated 8th March 2021 effective 8th April 2021. He sued alleging forced retirement and unfair termination, claiming twelve months' compensation, notice pay, unpaid salary, leave, overtime, public holiday pay, and service gratuity. The Respondent defended on documents only, adducing no oral evidence, asserting a retirement age of 60 under its HR Policy and that clearance payments covered salary and leave. The court held that even in a suit undefended by oral testimony, the Claimant bore the burden of proof. It found the Notice of Retirement stated no reason, made no reference to age or any HR manual, and the Respondent's HR manual was undated, unauthenticated and of no probative value. The Claimant, born 24th December 1962, was 58 and had not attained retirement age. The retirement was therefore an unjustified forced retirement amounting to unfair and unlawful termination, both substantively and procedurally, as the Section 41 safeguards were not invoked. The court declared the termination unfair, awarded the equivalent of four months' gross salary (Kshs.640,000) under Section 49(1)(c), plus costs and interest. The prayers for notice pay, unpaid salary, leave, overtime, public holiday pay and service gratuity were all declined for want of proof or because payment was shown. Judgment was delivered virtually at Nairobi on 30th October 2023 by Dr. Jacob Gakeri J.

Key legal issues

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01

Whether the notice of retirement amounted to unfair termination

Holding

Yes - the retirement was unjustified forced retirement constituting unfair and unlawful termination

Reasoning

The Notice of Retirement gave no reason, made no reference to the Claimant's age or any HR manual or agreement. The Claimant was 58, not having attained the mandatory retirement age of 60. The HR manual relied on by the Respondent was neither dated nor authenticated and lacked probative value. The Respondent also failed to invoke the mandatory Section 41 safeguards, rendering the termination substantively and procedurally flawed.

p. 6
02

Quantum of compensation under Section 49(1)(c)

Holding

Equivalent of four months' gross salary, Kshs.640,000

Reasoning

The court considered that the Claimant served only 4 years and 7 days, was loyal and diligent, did not appeal the decision or express a wish to continue, received Kshs.88,897 in clearance payment, and did not contribute to the termination. These factors justified four months' gross salary rather than the twelve months claimed.

p. 7
03

Overtime and public holiday claims

Holding

Declined for want of proof

Reasoning

The contract had no overtime payment clause and specified working hours. The Claimant, who bore the burden, tendered no evidence of a daily routine of excess hours, no formal request for overtime pay, and did not identify the public holidays worked. The employee cannot establish overtime by default of the employer producing records.

p. 8

Legal principles established

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  • For a termination of employment to pass muster, the employer must show both a valid and fair reason and fair procedure
  • Even in an undefended suit, the claimant must still prove all facts of the claim
  • The burden of establishing hours served in excess of the legal maximum for overtime claims rests with the employee
  • Forced retirement of a loyal and diligent employee who has not attained retirement age amounts to unfair termination

Court orders

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  1. 1.A declaration that the forced retirement was unlawful and unfair
  2. 2.Equivalent of 4 months gross salary, Kshs.640,000.00
  3. 3.Costs of this suit
  4. 4.Interest at court rates from the date of judgment till payment in full
  5. 5.All the other prayers declined

Authorities

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Legislation

  • Employment ActSections 41, 43, 45(2), 47(5), 49(1)(c)
  • Evidence ActSections 107, 108, 109
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Constitution of KenyaArticles 159(2)(d), 48

Cases cited (12)

  • Frank N. Kamau V Tusker Mattresses Ltd
    (2018) eKLR
  • Evans Katiezo Aligulah V Eldomat Wholesale and Supermarket Ltd
    (2016) eKLR
  • Humphrey Munyithya Mutemi V Soluxe International Group of Hotels and Lodges Ltd
    (2020) eKLR
  • Monica Kanini Mutua V Al-Arafat Shopping Centre & another
    (2018) eKLR
  • Nicholus Kipkemoi Korir V Hatari Security Guards Ltd
    (2016) eKLR
  • Walter Ogal Anuro V Teachers Service Commission
    (2013) eKLR
  • Naima Khamis v Oxford University Press (EA) Ltd
    (2017) eKLR
  • Benson N. Irungu V Total Kenya Ltd
    (Supra)
  • Pius Machafu Isindu V Lavington Security Guards Ltd
    (2017) eKLR
  • Rogoli Ole Manadiegi V General Cargo Services Ltd
    (2016) eKLR
  • Patrick Lumumba Kimuyu V Prime Fuels (K) Ltd
    (2018) eKLR
  • Lillian Mwende Nzabu V Trustees and Ofice Bearers of Diocese of Anglican Church of Kenya
    (2018) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (claim for unfair termination of employment)

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, "Mutia v Peter Mulei & Sons Co Ltd (Cause E516 of 2021) [2023] KEELRC 2670 (KLR)", Case Analysis (2023). Cause No E516 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2670/eng@2023-10-30

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