A notice of retirement can divest an employer of the right to terminate an employee’s services before the date on the said retirement letter

 Kenneth Karisa Kasemo v Kenya Bureau of Standards

Civil Appeal No 19 of 2012

Court of Appeal at Mombasa

E M Githinji, Asike-Makhandia, F Sichale JJA

July 10, 2013

Reported by Phoebe Ida Ayaya and Derrick Nzioka

Facts:

The appellant herein was employed by the respondent in 1982 as a Quality Control Officer and at the time he was relieved of his duties, he held the position of Senior Principal Quality Assurance Officer. Whilst in the respondent's employment, the appellant received a letter on 29^th March 2005 from the respondent which stated that he would attain the mandatory retirement age of fifty five (55) years on 21^st January 2006. He was therefore, as required, given a notice of one year to retire with effect from 21^st January 2005. He would be paid salary up to and including the 20^th day of January 2006. He received another letter dated 8^th April, 2005 which stated that the board had decided to retire him with immediate effect pursuant to the Kenya Government Code of Regulations G44 read along with G46.

It was the letter of 8^th April, 2005 that he took exception of as he contended that having been advised in the letter of 29^th March, 2005, that he would serve up to 21^st January, 2006, the respondent divested itself of the right of issuing any other notice terminating his services. He was of the view that any such notice was premature. His claim was based on what he would have been entitled to had he served from the time he was wrongfully terminated to the date of retirement (from 9^th April, 2005 up to and including 20^th January, 2006).

Issues:

      i.         Whether an employee was entitled to damages for unreasonable termination in an instance where he had been given a notice of retirement and the employer subsequently terminated his services before the date of retirement previously given

     ii.         Whether a letter, which was a notice of retirement, could divest an employer of the power to terminate an employee’s services before the date on the said letter.

Employment Law – unreasonable termination – where the employer issued a notice of retirement to the employee giving a period of one year and an assurance to pay up to and including the date on which the employee would attain the retirement age – where the employer subsequently terminated the employees service before the date stated on the letter of notice to retire – where the employee averred that termination of employment before the date on the notice of retirement amounted to unreasonable termination – whether the notice of retirement divested the employer of the right to terminate the employees services before the date on the letter – whether the termination of services by the employer before the date on the letter amounted to unreasonable termination.

Held:

1.    The law on employment did not envisage a situation where an employee could be forced upon an employer and vice versa, and the court had honoured the contract existing between parties as evidenced by the cases of Rift Valley Textiles Limited v Edward Onyango Ogonda, CA No 27 of 1982 (UR), Shimba Tourist Services Ltd v Wilson Mise Kigani CA No 135 of 1994 (UR), Kenya Ports Authority v Edward Otieno CA No 120 of 1997 and Ronald Kimatu Ngeli v Ukulima Sacco Society Ltd Nairobi CA No 277 of 2009 [2011] eKLR.

2.    By holding that the employer could not terminate the employee’s services up to and including the date on the notice of retirement letter would be tantamount to rewriting the contract between the employer and employee.

3.    By his letter of employment the employee agreed that his employment would be terminated by one month's notice, and that situation applied to both parties. The employee was also at liberty to disengage from the employer by giving one month's notice and to argue to the contrary – that both parties were bound to each other up to the date stated on the letter of retirement – would lead to absurdities.

4.    Had the employee wanted to disengage before the date on the notice of retirement letter, the employer could not have insisted on him being in employment. In any event, the parties could not be bound by a letter serving as a notice of retirement as if the said letter was not issued, the parties could not insist on continued service inspite of the mandatory retirement age just because they did not get a notice of retirement.

Appeal dismissed.