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ELRCPartially AllowedCause No E118 of 2023· [2025] KEELRC 108 (KLR)

Mwagwabi v County Assembly of Mombasa & another (Cause E118 of 2023) [2025] KEELRC 108 (KLR)

Employment and Labour Relations Court
24 January 2025
2,111 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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An employer who ignores an employee's early retirement request commits an unfair labour practice, and Kenyan courts will force the employer to process it.

What this practically means

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Executive summary

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The Claimant, a Public Relations Officer III aged 51 with 31 years of service spanning the former Municipal Council of Mombasa and its successors, applied for voluntary early retirement after being transferred by the 1st Respondent (County Assembly of Mombasa) to the 2nd Respondent (County Government of Mombasa) while on unpaid study leave in the United States. She sued seeking declarations that she was entitled to early retirement, an order compelling the Respondents to process her application and pay her dues, and general damages. The Respondents filed a joint defence admitting much of the claim but asserting she was bound by a two-year training bond; however, they closed their case without calling any evidence. The court held that their pleadings therefore remained unsubstantiated and the Claimant's evidence unchallenged. The court found the Claimant a victim of unfair labour practice: the transfer letter was never addressed or sent to her and its effective date was never communicated, and her written early retirement requests of 23rd February and 25th September 2023 were ignored, amounting also to an unfair administrative act under the Fair Administrative Action Act. The court found she was qualified for voluntary early retirement and that no bond existed since the Respondents incurred no cost on her studies. Judgment was entered jointly and severally against the Respondents with declarations that she was entitled to apply for early retirement and that the refusal to process it breached her right to fair labour practices. The Respondents were ordered to process the application and pay her dues within ninety days. General damages were refused as unjustified, and the Claimant was awarded costs.

Key legal issues

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01

Whether the Respondents' conduct in transferring the Claimant without notice and refusing to process her early retirement constituted unfair labour practice

Holding

Yes. The Claimant's unchallenged evidence established she was transferred while on study leave abroad without the letter being addressed or sent to her, and her written early retirement requests were ignored, amounting to unfair labour practice and an unfair administrative act.

Reasoning

The Respondents closed their case without calling any evidence, so their defence remained unsubstantiated and the Claimant's evidence unchallenged. The court found that the purported transfer letter of 3rd February 2023 was never sent to the Claimant nor communicated its effective date, and that the Respondents gave no explanation for failing to process her early retirement requests despite receiving them, contrary to the Fair Administrative Action Act definition of an administrative act.

p. 4
02

Whether the Respondents could bond the Claimant to serve a period after her study leave

Holding

No. No bond was executed and the Respondents incurred no cost for her studies, having granted unpaid leave and paid no fees.

Reasoning

The Claimant testified that she signed no bond and the Respondents neither paid her salary during the unpaid leave nor incurred any expense on her studies. The Respondents did not rebut this evidence, so the plea that she was bound to serve a two-year bond term failed.

p. 4

Legal principles established

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  • A party who fails to call evidence in support of its case leaves its pleadings as unsubstantiated statements and the opposing evidence unchallenged
  • Failure by an employer to consider and process an employee's written request for early retirement is an unfair labour practice and an unfair administrative act

Court orders

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  1. 1.Declaration that the Claimant was entitled to apply for early retirement and to have her application considered and processed by the Respondents within a reasonable time
  2. 2.Declaration that the Respondents' refusal to consider and process the Claimant's application for early retirement amounted to a breach of the Claimant's right to fair labour practices
  3. 3.Respondents to process the Claimant's application for early retirement within ninety (90) days of the Judgment and pay her dues entitlement upon early retirement within that period
  4. 4.Claimant awarded costs of the suit

Authorities

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Legislation

  • Fair Administrative Action ActSection 2
  • Constitution of Kenya, 2010Not specified (promulgation referenced in pleadings)

Cases cited (1)

  • Chrispine Otieno Caleb – vs – Attorney General
    [2014] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment and fair labour practices disputes (claim filed in the ELRC; specific enabling provision not stated in the judgment)

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, "Mwagwabi v County Assembly of Mombasa & another (Cause E118 of 2023) [2025] KEELRC 108 (KLR)", Case Analysis (2025). Cause No E118 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/108/eng@2025-01-24

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