Makau v Kenya Aerotech Limited (Employment and Labour Relations Appeal E062 of 2025) [2025] KEELRC 3726 (KLR) (19 November 2025) (Judgment) Neutral citation: [2025] KEELRC 3726 (KLR) REPUBLIC OF KENYA IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI EMPLOYMENT AND LABOUR RELATIONS APPEAL E062 OF 2025 DKN MARETE, J NOVEMBER 19, 2025 BETWEEN ROBERT MUSYA MAKAU .................................................................... APPELLANT AND KENYA AEROTECH LIMITED ......................................................... RESPONDENT JUDGMENT 1. This matter was originated by way of a Memorandum of Appeal dated 28th February, 2025. It comes out as follows;The learned magistrate erred in fact and law in failing to appreciate that the Appellant’s date of retirement from the Respondent’s employment was 18th December, 2019 and therefore he was entitled to interest on his retirement benefit from the date of such retirement which dues were unduly withheld by the Respondent.The trial court erred in law and fact in failing to appreciate the evident adduced in court by the Appellant that the Respondent was required to pay the Appellant his retirement benefit through the December, 2019 payroll.That the trial court again erred in law and fact in failing to appreciate the evidence adduced in court by the Appellant to show that at the onset the Respondent unlawfully withheld the Appellant’s retirement benefit for over a year necessitating the filing of the claim MC ELRC No. 613 of 2021 on 15th April, 2021.The learned magistrate erred in law and fact in failing to appreciate that despite the Respondent admitting owning the sum of Kshs.982,347.20 on 8th June, 2023 no payment has been remitted to the Appellant by the time of the final judgment on 28th November, 2024, five years after the date of retirement.That the trial court erred in law and fact by failing to appreciate that the amount of Kshs.982,347.20 unlawfully withheld by the Respondent entitled the Appellant to award of interest from the date of retirement till payment in full.That the trial court erred in law and fact in failing to appreciate that the Appellant suit was necessitated by the Respondent’s conduct and deliberately in his determination and therefore the Appellant was entitled to costs of the suit. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/3726/eng@2025-11-19 1
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2. The Appellant therefore prays that this Appeal be allowed and the judgment delivered on 28th November, 2024 and reviewed on 19th February, 2025 in MC ELRC No. E613 of 2021be reviewed and substituted as follows; 1. that judgment be entered in favour of the Appellant against the Respondent for the sum of Kshs.1,082,347.20 together with interest thereon from the date of Retirement being 18th December, 2019 until payment in full. 2. that in the alternative to prayer 3 above, judgment be entered in favour of the Appellant against the Respondent for the sum of Kshs.1,082,347.20 together with interest thereon from the date of filing suit being 15th April, 2021 until payment in full. 3. costs of this Appeal and costs of the suit in MCELRC CAUSE No. E613 of 2021 be awarded to the Appellant. 3. The Appellant in their written submissions dated 3rd July, 2025 submits that as a backgrounder, a consent judgment was recorded in the primary suit on 8th June, 2023 and judgment entered on 17th July, 2023 on the admitted sum of Kshs.982,347.20. This done, the only issue left for determination by the trial court was therefore damages, salary arrears and interest on pension to enable the court issue a final degree. 4. It is the Appellant’s further submission that the trial court delivered its judgment on 28th November, 2024 but due to an inadvertent error of omission failed to include the sum of Ksh.982,347.20 which was entered in the partial consent. This was rectified by court by a ruling dated 19th February, 2025. A final award of Kshs.1,082,347.20 was subsequently made with the consent of counsel for the Respondent who was present in court. This, however, did not cover interest from the date of retirement as well as costs which now form the basis of this appeal. 5. The Appellant’s case is that by a letter dated 11th December, 2019 and addressed to the said Appellant, the Respondent categorically stated that the Appellant’s retirement dues would be met through the December, 2019 payroll. By a court order dated 17th July, 2023, a consent judgment was entered on the admitted sum of Kshs.982,347.20. The Appellant pension dues were all this time due and owing by the Respondent as is held the authority of Kaloki and 2 Others vs Kenya Aerotech Ltd [2022] KEELRC at paragraph 21 where the court observed as follows; As the sums prayed above became payable upon retirement and considering that the Respondent has dithered on payment for close to 2 years, the claimant are granted interest at court rates from the date of retirement until payment in full 6. Notably, this involved the same Respondent as we have here where the Claimant were retirees who had not been paid their dues for long periods. 7. The Appellant further submits in reliance to the court proceedings at pages 42 – 45 of the trial court proceedings of 8th June, 2023 when the consent judgment was recorded. Counsel for the Respondent admitted to the sums due to the Appellant and therefore a recording of the consent judgment. The court proceedings on 29th April, 2024 again bring out the Respondent’s confirmation of the terms of the partial consent and a drawing of written submissions on the balance of issues. 8. The Appellant additionally submits that the Appellant is entitled to costs of this cause and also of the trial court. On this, they rely on authority of Section 26(1) and 27(1) of Civil Procedure Act Chapter 21, Laws of Kenya which provide the judge with a discretion in the issue of costs and interest on costs https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/3726/eng@2025-11-19 2
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in matters before court. This was observed in the authority of Morgan Air Cargo Limited v Everest Enterprises Limited [2015] Eklr. 9. The Respondent opposes the appeal by relying on authority of Independent Electoral and Boundaries Commission & another v Mule & 3 others (Civil Appeal 219 of 2013) (2014) KECA 890 (KLR) which upholds that parties are bound by the pleading which in turn limits the issues upon which a trial court may pronounce. It is the Respondent’s case and submission that prayer for interest from the date of retirement till payment in full or interest be awarded from the date of filing the suit were never pleaded at the initial stage therefore cannot be entertained at appeal. 10. It is outrightly clear from the pleading at the lower court that there is inconsistency between the prayers in this appeal and those at the lower court. The Appellant did not succinctly or by any means include the prayer the subject matter of this appeal at the claim level. It would not be right to consider this at the appeal phase. The right thing and approach would have been to raise a pleading on it so that it would be subjected to trial as appropriate before the trial court. 11. The Respondent further faulted the prayer the award of interest by submitting that this is a discretionary remedy left on the will on the trial court. It is their submission that section 26(1) is permissive and not mandatory. The court always has the power to exercise its discretion in such awards of interest. This is the position and enunciated in the authorities of Hammond Holdings Limited & another v Coast Computer Bureau Limited & another [2024] KEELC 4060 (KLR) and Highway Furniture Mart Ltd vs The Permanent Secretary and another [2006] 2 ER94 12. On the issue of non-award of costs, the Respondent submits that this also is a discretionary remedy where the judge is awarded full power to determine who pays costs and from what property this is paid. The court is empowered to direct and give all necessary direction on the award and payment of costs. Section 27 (1) of the Civil Procedure Act only mandates that this discretion must be exercised judiciously and in the interest of justice. 13. The Respondent’s case in opposition to the appeal overwhelms that of the Appellant. The law is succinct that a court can only award in accordance with pleading of the parties. This is because pleadings open up the issues in dispute for interrogation and trial. It is only through such process that parties would have an opportunity to ventilate the issues and allow the court to make a determination. This assures the cause of justice. 14. The Appellant also fails on the prayers for interest and costs as these are discretionary and left to the will of the court. Unless there is evidence that this exercise is unreasonable, non-judicious or whimsical the court like in this case cannot be faulted. 15. I am therefore inclined to dismiss the appeal with orders that each party bears their costs of the same. DELIVERED, DATED AND SIGNED THIS 19TH DAY OF NOVEMBER 2025. D. K. NJAGI MARETE JUDGE Appearances: M/s Macharia instructed by Mungai Kalande & Co. Advocates for the Appellant. Mr. Masangwa instructed by Njenga Muchai & Associates for the Respondent. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/3726/eng@2025-11-19 3
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