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IndustrialDismissedNot stated in the judgment text provided· [2014] KEIC 131 (KLR)

Galgalo v Standard Group Limited (Cause 874 of 2013) [2014] KEIC 131 (KLR)

Industrial Court (Employment and Labour Relations Court)
4 April 2014
NMNzioki Wa Makau
1,104 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court dismissed a driver's claim for working to 60, ruling that his contract's retirement age of 55 was binding and could not be rewritten.

What this practically means

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Executive summary

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The Claimant, a driver engaged by the Respondent on 1st May 2005 on a consolidated monthly salary of KShs 25,100, was retired by letter dated 10th May 2011 upon attaining the contractual retirement age of 55 years, with two months' notice. He sought to work until 60 years, claiming two months in lieu of notice, salary for five years (60 months), twelve months' compensation for unfair loss of employment, house allowance and a certificate of service, totalling KShs 1,875,400. The Respondent denied liability, contending the contract terminated by effluxion of time on reaching retirement age, that section 41 of the Employment Act on hearing before termination did not apply to retirement, and that dues were paid. The Respondent's legal officer confirmed the contractual retirement age of 55, issuance of two months' notice, payment of dues and issuance of a Certificate of Service. The court held that it cannot rewrite contracts for parties; substituting the contractual retirement age of 55 with the statutory 60 years was impermissible. The Claimant was found untruthful in testifying that house allowance was unpaid when he had pleaded a consolidated salary and had not claimed house allowance in his pleadings. Applying Hahn v. Singh and Maina & Anor., the court held that unpleaded special damages are not awardable. The Claimant having been paid his terminal dues and notice, the claim was dismissed with costs to the Respondent. Orders were dated and delivered at Nairobi on 4th April 2014 by Nzioki Wa Makau, Judge.

Key legal issues

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01

Whether retirement at contractual age of 55 was valid notwithstanding statutory retirement age of 60

Holding

Valid - the contract governed and the court could not rewrite it

Reasoning

The Claimant's contract provided retirement at 55. He was given 2 months' retirement notice and paid his dues. Inviting the court to substitute 60 for 55 would amount to rewriting the contract, which no court can do. The claim had no proper basis.

p. 3
02

Whether unpleaded house allowance was recoverable

Holding

Not recoverable

Reasoning

The Claimant pleaded a consolidated salary but testified he was not paid house allowance, a sum not claimed in the pleadings. Following Hahn v. Singh and Maina & Anor. v. Kagombe, special damages must be specifically pleaded. The Claimant was also found untruthful on the point.

p. 3

Legal principles established

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  • Courts cannot rewrite contracts for parties; the contractual retirement age of 55 was binding even if the statutory retirement age changed to 60
  • Special damages must be specifically pleaded to be awardable

Court orders

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  1. 1.The Claimant's claim is dismissed with costs to the Respondent

Authorities

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Legislation

  • Employment ActSection 41

Cases cited (3)

  • Kenya Plantation and Agricultural Workers Union v. Kenya Cuttings Ltd.
    [2013] eKLR
  • Michael Maina & Anor v. Stanley Kigara Kahombe
    [1996] eKLR
  • Hahn v. Singh
    [1985] KLR 716
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act 2007 context); no specific constitutional provision invoked in the judgment text

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, "Galgalo v Standard Group Limited (Cause 874 of 2013) [2014] KEIC 131 (KLR)", Case Analysis (2014). Not stated in the judgment text provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keic/2014/131/eng@2014-04-04

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