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ELRCDismissedAppeal No. E254 of 2025

Charles Nelson Mugo v Wells Fargo Limited

Employment and Labour Relations Court of Kenya
22 September 2026
4,430 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court confirmed that a security company driver could be retired at 58 under a 1998 wage order that still applies despite its parent law's repeal.

What this practically means

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Executive summary

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The Employment and Labour Relations Court, Appeals Division (Abuodha Jorum Nelson, J), dismissed an appeal by Charles Nelson Mugo against the judgment of Chief Magistrate Lucy Ambasi, which had rejected his claim that his retirement by Wells Fargo Limited at age 58 was unlawful, unfair and premature. The appellant, a driver employed in July 2012, argued that the Regulation of Wages (Protective Security Services) Order, 1998 - the basis of the retirement at 55 - had been repealed with its parent statute, that no contractual or statutory retirement age of 55 applied to him, and that his retirement breached fair labour protections. The court held that the 1998 Order survived the repeal of the Regulation of Wages and Conditions of Employment Act under the Interpretation and General Provisions Act, and that it applied to all employees of a security undertaking regardless of designation, following Kenya National Private Security Workers Union v Wells Fargo and Robert Kithinji Kiugu v AAA Growers. It further held there is no mandatory private-sector retirement age of 60, that a legitimate expectation cannot override statute, and that the appellant received 30 days' notice, exceeding the contractual 28 days, so the retirement was neither wrongful nor procedurally unfair. The trial court's refusal of the 24 months' salary claim was upheld. The appeal was dismissed with no orders as to costs, the court noting the appellant may have honestly believed the Order did not apply to him.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Regulation of Wages (Protective Security Services) Order 1998 applied to the Appellant
  2. 2.Whether the termination of the Appellant's employment was unfair and unlawful
  3. 3.Whether the trial court erred by not awarding the Appellant the reliefs he sought

Key legal issues

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01

Whether the Regulation of Wages (Protective Security Services) Order, 1998 remained in force and applied to a driver employed by a private security company

Holding

The Order remained in force despite repeal of the parent statute and applied to all employees of a security undertaking regardless of job designation, including the Appellant as a driver

Reasoning

The court adopted the reasoning in Robert Kithinji Kiugu v AAA Growers that subsidiary legislation survives repeal of its parent statute under the Interpretation and General Provisions Act. On scope, it followed Kenya National Private Security Workers Union v Wells Fargo, holding the Order applies to all employees of an enterprise described in Section 2 without categorization, so a driver is covered.

p. 17
02

Whether the retirement at 58 years was a valid and fair reason and procedurally fair

Holding

The retirement was valid, fair and lawful; the employer relied on Regulation 17(2)(b), gave 30 days' notice exceeding the contractual 28 days, and no disciplinary hearing was required for retirement

Reasoning

The contract had no retirement clause, but the employer lawfully relied on Regulation 17(2)(b), which applied. There is no mandatory private-sector retirement age of 60. Legitimate expectation cannot override statute; what the Appellant was entitled to was adequate notice, which he received (30 days against 28 contractual days).

p. 22
03

Whether the trial court erred in refusing the reliefs sought

Holding

The trial court was justified in refusing the reliefs since the termination was lawful; the certificate of service awarded was an entitlement under section 51 of the Employment Act

Reasoning

Having found the retirement lawful, the court held the trial court properly declined compensation. The claim for 24 months' salary up to age 60 was untenable, and the Appellant had received terminal dues including gratuity for 11 years and executed a discharge certificate.

p. 22

Legal principles established

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  • Subsidiary legislation issued under a repealed parent statute remains in force unless revoked or inconsistent with the repealing Act
  • A Wage Order's conditions are incorporated into employment contracts by operation of law where the contract is silent
  • A legitimate expectation cannot override a clear statutory provision
  • The first appellate court must re-evaluate the evidence on both law and fact and come to its own conclusions

Court orders

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  1. 1.The Appellant's Appeal is dismissed with no orders as to costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

Wrote the judgment

On appeal from
Chief Magistrate's Court at Nairobi (MCELRC)
MCELRC Case No. E20420 of 2023
Jurisdiction invoked
First appellate jurisdiction over the subordinate court (Employment and Labour Relations Court Appeals Division)

Relief refused

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Allowance of the appeal and setting aside of the lower court judgment

The appeal was found to be without merit; the retirement was lawful and fair

p. 23

Damages for wrongful termination equivalent of 24 months' gross salary (Kshs. 1,139,856.00)

Retirement was not wrongful, unfair or unlawful; reliefs were properly refused by the trial court

p. 22

Costs in both the lower and High Court

Court ordered no orders as to costs, reasoning the appellant may have honestly believed the Order did not apply to him

p. 23

Costs

Appeal dismissed with no orders as to costs

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

In the upshot the court finds and holds that the Appellant’s Appeal is without merit and the same is hereby dismissed with no orders as to costs
p. 23Disposition
It is so ordered.
p. 23Final orders
In the circumstances, I find that the Regulation of Wages (Protective Security Services) Order, 1998 applied to the Appellant.
p. 17Applicability of the Wage Order
I therefore find that the Appellant's retirement was not wrongful, unfair or unlawful.
p. 22Lawfulness of retirement
Of concern as well is whether a legitimate expectation can override a statute. It is the court’s view that it cannot.
p. 21Legitimate expectation versus statute
the duty of the first appellate court is to re-evaluate the evidence before the subordinate court both on points of law and facts and come up with its own findings and conclusions
p. 13Standard of review on first appeal

Issues in the judgment

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minor

Paragraph numbering restarts mid-judgment

material

Memorandum of Appeal dated before the judgment appealed from

minor

Appellant's submissions dated after Respondent's and after the lower court judgment timeline

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, "Charles Nelson Mugo v Wells Fargo Limited", Case Analysis (2026). Appeal No. E254 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2486/eng@2026-09-22

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