Njiiri v National Bank of Kenya Limited (Cause 809 of 2020) [2024] KEELRC 808 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the compulsory leave and dismissal were unlawful
Termination complied with the law applicable in 1999 (three months' pay in lieu of notice under Section 16, Employment Act Cap 226), but the six-year compulsory leave was wrongful
The applicable law was the Employment Act Cap 226 and Trade Dispute Act Cap 334 since the cause of action arose in 1999; the Employment Act, 2007 has no retrospective effect. The contract permitted termination by payment in lieu of notice and did not require a reason. However, the compulsory leave, instigated by a third party (the National Treasury) and extended repeatedly for almost six years without investigation or resolution, was wrongful and attributable to the Respondent's indecisiveness.
Whether general damages for constitutional violations were available
Declined; no provisions, manner of violation or evidence pleaded
Neither the Further Amended Plaint, witness statement nor oral testimony specified the provisions of the Constitution allegedly infringed or how, as required by Anarita Karimi Njeru v Attorney General and restated in Mumo Matemu. The prayer was therefore unestablished and unmerited.
Whether lost income from termination to retirement (1999–2006) was recoverable
Dismissed; no damages to date of retirement under an exit-clause contract
The contract contained an exit clause allowing either party to terminate; being 'permanent and pensionable' does not bar termination. Employment relationship ends on termination and all attendant dues must be settled then. Reliance placed on Rika J in Engineer Francis Gachuri v Energy Regulatory Commission and the Court of Appeal in D K Njagi Marete v Teachers Service Commission.
Entitlement to certificate of service and early retirement package
Certificate of service awarded under Section 18(1), Employment Act Cap 226; early retirement package declined for want of jurisdiction
The Claimant is entitled to a certificate of service by statute. Early retirement packages are consensual arrangements; the court cannot impose one on the Respondent on the Claimant's terms, though the Respondent should have explored amicable separation.
Legal principles established
#- The Employment Act, 2007 has no retroactive application to causes of action arising before its commencement
- Placing an employee on compulsory leave for almost six years without updating the status of his employment is wrongful and attributable to the employer's indecisiveness
- An employee on permanent and pensionable terms is not entitled to damages to the date of retirement; no employment is permanent
Court orders
#- 1.Judgment entered for the Claimant against the Respondent for arrears due 1994–1999 but for the compulsory leave: monthly salary; entertainment allowance based on his average claim for the year; travelling allowance based on his average claim for the year; house allowance of Kshs.425,600; leave pay, leave allowance and leave travel allowance to be computed by the Respondent; refund of water, telephone, electricity and medical of Kshs.57,077.60
- 2.Costs of the suit to the Claimant
- 3.Interest at court rates from the date of judgment till payment in full
- 4.Certificate of service to be issued within 30 days
- Jurisdiction invoked
- Original employment and labour relations jurisdiction (cause of action governed by Employment Act Cap 226 and Trade Dispute Act Cap 334)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Njiiri v National Bank of Kenya Limited (Cause 809 of 2020) [2024] KEELRC 808 (KLR)", Case Analysis (2024). Not specified in judgment (oldest suit reinstated by ruling dated 15th October 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/808/eng@2024-04-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.