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ELRCPartially AllowedNot stated in the judgment text provided· [2025] KEELRC 1939 (KLR)

Nduru v Avenue Service Station Ltd (Employment and Labour Relations Cause 839 of 2018) [2025] KEELRC 1939 (KLR)

Employment and Labour Relations Court
30 June 2025
7,378 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~30 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court confirmed that private employers cannot retire staff on age grounds unless a retirement age was clearly agreed in writing.

What this practically means

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Executive summary

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The Claimant, employed as a driver from February 2009, was retired by the Respondent on 31st May 2015 on account of attainment of retirement age, midstream through a one-year fixed term contract signed on 1st January 2015. He claimed compensation for unfair termination, salary for the unexpired term, notice pay, accrued leave, public holiday pay and underpaid salary. The Respondent alleged the 2009 contract was forged and that retirement followed a mandatory retirement age. The court declined to strike out the amended Statement of Claim filed two days late, finding no prejudice and invoking Article 159(2)(d). It held the Respondent failed to prove forgery to the standard beyond a balance of probabilities and rejected the forgery claim against the 2015 contract as evidence tendered through submissions. It found no written authority was needed for a company witness to testify. On the substance, the court held that Kenyan law fixes no mandatory retirement age in the private sector; retirement age must be agreed expressly in the contract, HR Manual or CBA or inferred from conduct. The Respondent produced no policy instrument and its conduct in renewing the contract despite knowing the Claimant was 67 negated any implied agreement; the termination was declared unfair. Compensation was limited to five months' salary (Ksh. 75,921.50). Salary for the unexpired term, notice pay, public holiday pay, overtime and unremitted NSSF dues were refused for lack of a contractual basis, issuance of notice, time bar and non-pleading respectively. Leave commutation for 47 conceded days (Ksh. 23,782.47), 2009 underpayment (Ksh. 2,520.00) and May 2015 salary (Ksh. 15,200.00) were awarded, subject to statutory deductions, with interest and costs to the Claimant.

Key legal issues

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01

Legitimacy of retirement on account of attainment of retirement age

Holding

Termination on account of retirement age was unlawful where no retirement age was agreed in the contract, HR Manual or CBA, and the employer had granted a fresh one-year fixed term knowing the Claimant's age

Reasoning

Kenyan law fixes retirement age only for public sector employees. Private-sector retirement age must be expressly agreed or inferred from conduct. The Respondent's policy document and staff memo were not tendered or acknowledged, and having issued the Claimant a fresh one-year contract in January 2015 despite knowing he was 67, the Respondent's conduct negated any implied agreement on retirement at 65. The unilateral decision to retire him was therefore unfair and unlawful.

p. 8
02

Alleged forgery of the contracts of 25th February 2009 and 1st January 2015

Holding

The 2009 contract was validly proved and the forgery allegation failed for want of cogent evidence; the forgery claim against the 2015 contract was raised only in submissions and rejected

Reasoning

The Respondent never produced an alternative contract, never called the alleged original grantee of the 2009 contract, and never preferred the threatened criminal charges or a forensic examination report. Forgery is a serious allegation requiring proof beyond a balance of probabilities. The 2015 forgery claim surfaced only in counsel's final submissions, effectively tendering evidence through submissions, which the law does not permit.

p. 4
03

Authority of a company witness to testify

Holding

No written authority is required for a person to testify on behalf of a company; authority to plead is distinct from competence to testify

Reasoning

The court found the proposition unsupported by law. Under section 125 of the Evidence Act, any person with knowledge of a matter and not incapacitated is competent to testify. The requirement for written authority applies to representation and pleading on behalf of a body corporate, not to giving evidence.

p. 5
04

Entitlement to compensation for unfair termination

Holding

Compensation limited to five months' gross salary (Ksh. 75,921.50) given the seven-month balance of term and the possibility of earlier legitimate termination

Reasoning

The court recognized that a fixed-term contract with a notice clause could have terminated earlier for valid reasons such as misconduct, incapacity or redundancy, so the Claimant was not guaranteed the full balance of term. Compensation for twelve months would overshoot the remaining term and be unconscionable. Weighing the length of the relationship and the seven-month balance, five months' salary was appropriate.

p. 9
05

Underpayment of salary against Wage Orders

Holding

Only 2009 underpayment of Ksh. 2,520.00 established; for all other years the Claimant earned above the applicable minimum wage

Reasoning

Applying the relevant Legal Notices fixing minimum wages for drivers of light vans in Nairobi, the court compared the Claimant's documented pay year by year. Only in 2009 did his consolidated pay of Ksh. 8,064.00 fall below the minimum of Ksh. 8,274.00. For 2010-2015 his pay exceeded the minima, and the vehicles he drove were confirmed to be light vans.

p. 12

Legal principles established

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  • In the private sector, mandatory retirement age is not fixed by law; it must be agreed expressly in the contract, Human Resource Manual or CBA, failing which it may be inferred from the parties' conduct
  • Under section 10(7) of the Employment Act the burden of proving a contested term of a contract rests on the employer
  • Forgery in civil proceedings must be proved to a standard beyond a balance of probabilities
  • A company witness does not require written authority to testify; evidence cannot be tendered through closing submissions
  • Late objection to production of documents already admitted in evidence comes too late
  • Courts should not strike out pleadings filed marginally late where no prejudice is demonstrated, per Article 159(2)(d)

Court orders

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  1. 1.Declined to strike out the amended Statement of Claim filed two days late
  2. 2.Declared that the employment relationship was unfairly terminated on account of attainment of retirement age
  3. 3.Awarded compensation for unfair termination equivalent to five months' salary, Ksh. 75,921.50
  4. 4.Awarded commutation of 47 accrued leave days in the sum of Ksh. 23,782.47
  5. 5.Awarded Ksh. 2,520.00 for underpayment of salary during 2009
  6. 6.Awarded unpaid salary for May 2015 in the sum of Ksh. 15,200.00
  7. 7.Awarded the Claimant costs of the case
  8. 8.Directed that the award is subject to applicable statutory deductions
  9. 9.Ordered that amounts awarded shall attract interest at court rates from the date of institution of the claim

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159(2)(d)
  • Constitution of Kenya, 2010Article 167
  • Employment and Labour Relations Court ActSection 20(1)
  • Employment and Labour Relations Court ActSection 3
  • Employment and Labour Relations (Procedure) Rules, 2024Rule 80
  • ELRC Procedure RulesRule 28(3)
  • Employment ActSection 10(7)
  • Evidence ActSection 125
  • Public Service Commission ActSections 80 and 81
  • Public Service Commission Regulations, 2020Regulations 70 and 71
  • Wage Order 2009 (Legal Notice No. 70 of 2009)
  • Wage Order 2010 (Legal Notice No. 98 of 2010)
  • Wage Order 2011 (Legal Notice No. 63 of 2011)
  • Wage Order 2012 (Legal Notice No. 71 of 2012)
  • Wage Order 2013 (Legal Notice No. 197 of 2013)
  • Wage Order 2015 (Legal Notice No. 117 of 2015)

Cases cited (11)

  • Kinyanjui v Kinyanjui & another
    (Civil Appeal E201 of 2022) [2024] KEHC 11217 (KLR)
  • Ogando v Watu Credit Limited & another
    (Civil Suit E098 of 2022) [2024] KEHC 3074 (KLR)
  • Githaiga v Mwangi
    [2024] KEHC 13449 (KLR)
  • Church Commissioners for Kenya & another v Board of Management Oljoro Orok Primary School
    [2019] eKLR
  • Diesel Inject Services v Shajand Holdings Ltd
    (Civil Appeal 53 of 2020) [2024] KEHC 4902 (KLR)
  • Simeon A. Oloo & 19 others v Lake Basin Development Authority
    (Petition E049 of 2021) [2022] KEELRC 87 (KLR)
  • Robert Kithinji Kiugu v AAA Growers Limited
    [2019] eKLR
  • Steel Makers Limited v Joshua Nzuki
    [2016] eKLR
  • Andrew Mwaniki Gachuba v National Oil Corporation of Kenya
    [2018] eKLR
  • Minnie Mbue v Jamii Bora Bank Limited
    [2017] eKLR
  • Mwavula v Waweru t/a Antique Auctioneers Agencies & another
    (Civil Appeal E374 of 2023) [2024] KEHC 5988 (KLR)
Jurisdiction invoked
Article 162(2) of the Constitution establishing the ELRC; Employment and Labour Relations Court Act

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, "Nduru v Avenue Service Station Ltd (Employment and Labour Relations Cause 839 of 2018) [2025] KEELRC 1939 (KLR)", Case Analysis (2025). Not stated in the judgment text provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1939/eng@2025-06-30

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