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ELRCPartially AllowedCause No E353 of 2020· [2025] KEELRC 637 (KLR)

Ayuya v Kenya Airways Limited (Cause E353 of 2020) [2025] KEELRC 637 (KLR)

Employment and Labour Relations Court
28 February 2025
SRStella Rutto
4,023 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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A Kenyan court awarded an equipment operator four months' salary because his employer retired him on medical grounds without a proper hearing.

What this practically means

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Executive summary

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The Claimant, employed from 1999 and by the Respondent from 1st July 2004 as an Equipment Operator, was retired on medical grounds on 5th August 2017 following a history of chronic back pain attributable to degenerative disc disease. He sued for Kshs 1,292,511.00 being one month's salary in lieu of notice and maximum compensation for unfair termination, contending his exit was wrongful, unprocedural and unlawful, and that the Respondent unilaterally adopted a conflicting medical report without complying with Section 41 of the Employment Act. The Respondent maintained that it accommodated him with lighter duties for over a year, obtained three consistent medical opinions (Prof. Gakuu, Dr. Awori and a DOSH panel) recommending retirement, and facilitated counselling before his retirement. The Court framed three issues: justification, procedural fairness, and reliefs. On justification, it applied the Trident Steel reasonableness standard and found the Respondent had reasonably accommodated the Claimant and proved a valid reason for the medical retirement. On procedure, however, it found no evidence that the Respondent convened a hearing or explained the contemplated retirement as required by Section 41(1); counselling sessions and the DOSH process were held not to substitute for that statutory requirement. Following the Omanga decision, the Court held the retirement procedurally unfair. It awarded compensatory damages of four months' gross salary (Kshs 397,388.00), declined the notice-pay claim as already paid, awarded interest from the date of judgment and costs of the suit to the Claimant. Judgment was delivered at Nairobi on 28th February 2025 by Stella Rutto, Judge.

Key legal issues

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01

Whether the retirement on medical grounds was justified

Holding

Yes - the Respondent proved on a balance of probabilities that retirement was reasonably justified given three consistent medical reports and the physical nature of the Claimant's duties.

Reasoning

Three medical experts (Prof. Gakuu, Dr. Awori and a DOSH panel of three doctors) concluded the Claimant could not continue in his duties as Equipment Operator. The employer accommodated him on lighter duties for over a year without improvement, and there was no evidence he held qualifications enabling redeployment to softer, high-skilled duties. The court adopted the Trident Steel standard that accommodation need only be reasonable.

p. 7
02

Whether the Claimant was accorded procedural fairness under Section 41 of the Employment Act

Holding

No - the Respondent failed to explain the reasons for considering retirement to the Claimant or to convene a hearing, rendering the retirement procedurally unfair despite the valid reason.

Reasoning

Section 41(1) requires an employer, before terminating on grounds including physical incapacity, to explain the reasons to the employee and allow an accompanying representative. Although the Respondent facilitated counselling and the Claimant appeared before DOSH, no hearing was convened to explain the contemplated retirement; RW1 confirmed this in cross-examination. Counselling and the DOSH process are not substitutes for the statutory process.

p. 8
03

Entitlement to reliefs

Holding

Compensation of four months' gross salary awarded; notice pay refused as already paid.

Reasoning

Having found procedural unfairness, the Court exercised discretion under the Employment Act to award compensatory damages equivalent to four months' salary, factoring in the length of employment (1999/2004 to 2017) and the fact that the employer had proved a valid, justified reason. The claim for one month's notice pay failed because it formed part of the terminal dues already paid.

p. 8

Legal principles established

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  • Counselling sessions and an employee's appearance before DOSH do not substitute for the procedure under Section 41 of the Employment Act before termination on grounds of physical incapacity
  • An employer's obligation to accommodate an incapacitated employee extends only to what can reasonably be expected in the circumstances
  • Failure to give the employee specific notice of impending termination on medical grounds amounts to unfair termination for want of procedural fairness even where incapacity is established

Court orders

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  1. 1.Judgment entered in favour of the Claimant against the Respondent for the sum of Kshs 397,388.00 being compensation equivalent to four (4) months of the Claimant's gross salary
  2. 2.The award shall attract interest at court rates from the date of Judgment until payment in full
  3. 3.The Claimant shall have the costs of the suit

Authorities

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Legislation

  • Employment ActSection 41(1)
  • Employment ActSection 45(2)(c)
  • Employment ActSection 47(5)
  • Employment ActSection 42(1)
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48

Cases cited (5)

  • Simon Gitau Gichuru vs Package Insurance Brokers Ltd
    Supreme Court Case No.36 of 2019
  • Frank J. Mahinga vs Trustees of Arya Samaj Education Board
    (2014) eKLR
  • Ndiritu vs Boc Gases Kenya Limited
    [2022] KEELRC 13304 (KLR)
  • Kennedy Nyangucha Omanga vs Bob Morgan Services Limited
    (2013) eKLR
  • Trident Steel (Pty) Ltd vs Metal and Engineering Industries Bargaining Council and Others
    (DA 14/05) [2007] ZALAC 32
Jurisdiction invoked
Original jurisdiction under the Employment Act (first-instance claim; no enabling provision 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, "Ayuya v Kenya Airways Limited (Cause E353 of 2020) [2025] KEELRC 637 (KLR)", Case Analysis (2025). Cause No E353 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/637/eng@2025-02-28

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