Mogere v Telkom Kenya Limited (Civil Appeal 531 of 2019) [2025] KECA 736 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that an employee who refuses to report to duty can be dismissed for abandoning the job, losing pension and gratuity rights.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Posta Code or the Telkom Kenya Human Resource Policy Manual governed the appellant's terms of employment after the vesting order of 1st July 1999
- 2.Whether the appellant was entitled to a hearing before termination under the repealed Employment Act Cap 226 and the applicable service regulations
- 3.Whether the termination on the ground of vacation of office was justified
- 4.Whether the appellant was entitled to salary to retirement age, pension and gratuity rights
Key legal issues
#Which instrument governed the appellant's employment after the 1999 vesting order
Posta Code remained applicable; the appellant failed to prove that the Human Resource Policy Manual had replaced it
The appellant alleged that Posta Code ceased to operate upon the coming into force of the Telkom Kenya Human Resource Policy Manual, but produced no evidence of when that occurred, and the copy of the Manual in the record did not show its commencement date. Applying sections 107(1), 109 and 112 of the Evidence Act and Anne Wambui Ndiritu, the burden lay on her. The Telkom Kenya v Ochanda decision did not assist as the relevant issue did not arise there.
Whether a hearing was required before termination under the pre-2007 legal regime
No; the repealed Employment Act and the Posta Code did not provide for procedural fairness before termination
The court endorsed Radido, J.'s analysis in Chitavi that section 41 of the Employment Act, 2007 introduced procedural fairness prospectively; before that statute, an employer could dismiss on notice or payment in lieu, even for no reason, unless a hearing right was contractually incorporated. The appellant did not point to any provision of the Posta Code requiring a hearing before dismissal for vacation of office.
Whether the dismissal for vacation of office was justified
Yes; the appellant did not report to her assigned duty station after suspension was lifted and created circumstances warranting dismissal
The letter of 12th October 2001 directed the appellant to report to the General Manager O & M as soon as released from her station. She did not report, gave no justifiable reason, and assumed that pending appeals shielded her from adverse action. Clause 2.6.3.1 of part J of the Posta Code treated absence exceeding 48 hours without leave or acceptable excuse as vacation of office, with loss of pension and gratuity rights.
Entitlement to salary to retirement age, pension and gratuity
None; vacation of office forfeited pension and gratuity, and payment to retirement age would be unjust enrichment
Under section 2.6.3.1 of part J of the Posta Code, vacation of office involves loss of pension and gratuity rights and practically all privileges. Further, following the approach of the trial court and the decision relied on by the respondent (Elizabeth Kibe Wakanyi v Telkom Kenya Limited), payments to anticipated retirement are not payable since there is no guarantee of service to retirement, and payment would amount to unjust enrichment if the employee obtains other employment.
Legal principles established
#- The party asserting that a particular instrument governed employment terms bears the burden of proving that position
- Prior to the Employment Act, 2007, there was no general right to a hearing before termination unless expressly incorporated into the contract, staff manuals, policies or regulations
- An employee dissatisfied with terms of reinstatement must resume duty while pursuing appeals; failure to report for more than 48 hours constitutes vacation of office under the Posta Code
- On a first appeal, the court's duty is to re-evaluate, re-assess and re-analyse the evidence and draw its own conclusions, while allowing for the trial judge's advantage of seeing and hearing witnesses
Court orders
#- 1.Appeal dismissed
- 2.Costs of the appeal to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Employment and Labour Relations Court, Nairobi
- Nairobi ELRC Cause No. 248 of 2013
- Jurisdiction invoked
- First appellate jurisdiction over the ELRC (not expressly stated; the court characterised the appeal as 'a first appeal')
Relief refused
#Setting aside of the ELRC judgment and allowance of the appellant's claim with costs
The appeal was found unmerited; the trial court's findings on the applicable instrument, the justification of the termination and entitlements were affirmed
Payment of salary to anticipated retirement age, pension and gratuity
Vacation of office under clause 2.6.3.1 of part J of the Posta Code entailed loss of pension and gratuity rights; payment to retirement age would amount to unjust enrichment
Costs
Appeal dismissed with costs to the respondent.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Accordingly, we dismiss it with costs to the respondent.
As there is no evidence presented to us to show that as at the time of the disciplinary process undertaken against the appellant, Posta Code had ceased to operate, we agree with the learned Judge that the relevant document applicable was the Posta Code.
An employer was free generally to dismiss for a bad reason or a good reason but on notice or payment in lieu of notice. The employer could even dismiss for no reason at all. There was no obligation to notify or listen to any representations by the employee.
By not reporting to duty, the appellant created circumstances that warranted her dismissal on the new ground of vacation of ofice.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mogere v Telkom Kenya Limited (Civil Appeal 531 of 2019) [2025] KECA 736 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/736/eng@2025-05-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.