Nduru v Avenue Service Station Ltd (Employment and Labour Relations Cause 839 of 2018) [2025] KEELRC 1939 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Legitimacy of retirement on account of attainment of retirement age
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
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.
Alleged forgery of the contracts of 25th February 2009 and 1st January 2015
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
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.
Authority of a company witness to testify
No written authority is required for a person to testify on behalf of a company; authority to plead is distinct from competence to testify
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.
Entitlement to compensation for unfair termination
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
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.
Underpayment of salary against Wage Orders
Only 2009 underpayment of Ksh. 2,520.00 established; for all other years the Claimant earned above the applicable minimum wage
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.
Legal principles established
#- 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
#- 1.Declined to strike out the amended Statement of Claim filed two days late
- 2.Declared that the employment relationship was unfairly terminated on account of attainment of retirement age
- 3.Awarded compensation for unfair termination equivalent to five months' salary, Ksh. 75,921.50
- 4.Awarded commutation of 47 accrued leave days in the sum of Ksh. 23,782.47
- 5.Awarded Ksh. 2,520.00 for underpayment of salary during 2009
- 6.Awarded unpaid salary for May 2015 in the sum of Ksh. 15,200.00
- 7.Awarded the Claimant costs of the case
- 8.Directed that the award is subject to applicable statutory deductions
- 9.Ordered that amounts awarded shall attract interest at court rates from the date of institution of the claim
- Jurisdiction invoked
- Article 162(2) of the Constitution establishing the ELRC; Employment and Labour Relations Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.