1.The Claimant’s claim against the Respondent is for unfair termination of employment. The claim is contained in a Memorandum of Claim dated 26th January 2018 and amended on 17th September 2021. The Respondent’s defence is by way of a Memorandum of Response as amended on 15th November 2021.
2.At the trial, the Claimant testified on his own behalf and the Respondent called its Human Resource Coordinator, George Oketch. The parties also filed written submissions.
The Claimant’s Case
3.The Claimant states that he was employed by the Respondent in 1978 in the position of Clerical Officer III. He adds that his contract was renewed to run from 1st July 2013 to 30th June 2018 but was terminated on 10th February 2016.
4.The Claimant avers that on 26th January 2015, the Respondent wrote to him informing him that his retirement was due and that he ought to vacate office on 10th February 2016. At the time of leaving employment the Claimant occupied the position of Credit Control Officer.
5.The Claimant claims that the notice of retirement served on him by the Respondent was contrary to his contract of employment and the Employment Act.
6.The Claimant tabulates his claim as follows:a.Unexpired contract period (28 months)…………………....Kshs. 6,650,924b.Salary in lieu of notice…………………………………………………………..237,533c.Certificate of serviced.Costs plus interest
The Respondent’s Case
7.In its Memorandum of Response as amended on 17th September 2021, the Respondent states that the Claimant was among employees absorbed by the Respondent from the City Council of Nairobi in the year 2004.
8.The Respondent admits having renewed the Claimant’s employment contract to run from 1st July 2013 to 30th June 2018.
9.The Respondent however denies that it unprocedurally and/or illegally terminated the contract on 10th February 2016 and states that being a public entity, its employees are subject to the mandatory retirement age of 60 years, applicable in the public service.
10.The Respondent avers that the Claimant’s employment was terminated on attainment of the set retirement age.
11.The Respondent further avers that the Claimant was duly notified of his impending retirement in accordance with the terms of the Respondent’s policy.
12.The Respondent adds that the Claimant was issued with a notice of twelve (12) months prior to his attaining the mandatory retirement age.
13.In further response, the Respondent states that the Claimant was paid all his terminal dues upon which he signed a clearance form.
Findings and Determination
14.There are two issues for determination in this case:a.Whether the termination of the Claimant’s employment was lawful and fair;b.Whether the Claimant is entitled to the remedies sought.
15.On 26th January 2015, the Respondent wrote to the Claimant as follows:
Human Resource Manager”
16.The Claimant’s complaint against the Respondent is that the aforesaid retirement notice ran contrary to his contract of employment which was to run from 1st July 2013 until 30th June 2018. The Claimant however conceded that the Respondent, being an employer in the public service, was bound by the mandatory retirement age of 60 years set by the Government.
17.The Respondent’s Human Resource Policy Manual at Clause 8.27.4 states as follows:
18.As held by Onyango J in Inter Public Universities Councils Consultative Forum of the Federation of Kenya Employers v Kenya Union of Domestic, Hotels, Educational Institutions and Hospital Workers (KUDHEIHA) & 2 others; Ministry of Education, Ministry of Labour, Attorney General, Salaries and Remuneration Commission, Universities Academic Staff Union (Interested Parties) [ 2021] eKLR an employment contract cannot be negotiated outside government policy.
19.With this in mind, it follows that the Claimant’s employment contract, which purported to extend his employment beyond the mandatory retirement age of 60 years was irregular to that extent.
20.The conclusion therefore is that the Claimant’s claim which is based on the aforesaid contract fails and is dismissed.
21.Each party will bear their own costs.