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Court of AppealDismissedAppeal from Nakuru Employment and Labour Relations Court Cause No 58 of 2019 (memorandum of appeal dated June 18, 2020)

Chege v Timsales Ltd (Civil Appeal 29 of 2020) [2025] KECA 1660 (KLR)

Court of Appeal of Kenya
21 October 2025
3,955 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed employees cannot use same-day retirement notices to escape disciplinary proceedings — the employer's dismissal stood.

What this practically means

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Executive summary

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The Court of Appeal at Nakuru (Warsame, Mativo and Gachoka, JJ.A) dismissed an appeal against the judgment of Mbaru, J delivered on April 27, 2020 in Nakuru ELRC Cause No 58 of 2019. The appellant, an employee of Timsales Limited, was locked out in July 2018 after an unprotected strike; Onyango, J dismissed the union's challenge to the lock-out in June 2019 and directed that disciplinary proceedings proceed. Before those proceedings concluded, the appellant purported to retire with immediate effect on June 30, 2019, invoking a CBA clause permitting retirement at 47 years, and was dismissed for gross misconduct on August 1, 2019. The trial court held that the retirement notice could not sanitise gross misconduct and dismissed his claims for retirement benefits and constitutional compensation, ordering only a Certificate of Service. On appeal, the Court framed two issues: the validity of the retirement and the entitlement to reliefs. It held that a resignation or retirement 'with immediate effect' does not exist in the employment context unless the employer waives notice; where the contract or CBA is silent, the default notice periods under section 35 of the Employment Act apply. Because the appellant's purported notice was served without notice, a year after he stopped working, and the same day the show-cause notice issued, it was a tactic to evade a lawful disciplinary process backed by an unappealed court ruling and could be lawfully disregarded. The appeal was dismissed with costs to the respondent and the trial court's judgment affirmed.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the appellant's retirement from employment was valid
  2. 2.What reliefs the appellant was entitled to

Key legal issues

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01

Validity of the appellant's purported retirement notice

Holding

The retirement notice, served the same day it was to take effect and without notice, one year after the appellant stopped working, was invalid and was a tactic to evade a lawful disciplinary process backed by a court decision

Reasoning

The CBA provision allowing retirement at 47 years was silent on notice, so the statutory notice regime under section 35 of the Employment Act applied. The retirement letter was issued a year after the appellant left work and served the same day the show-cause notice was issued, showing intent to evade the disciplinary process. A retirement notice aimed at evading disciplinary proceedings can be lawfully disregarded, as the disciplinary process was lawfully commenced and sanctioned by Onyango, J's unappealed ruling.

p. 9
02

Whether disciplinary proceedings could continue against the appellant

Holding

Yes. The show-cause notice preceded the purported retirement, so the employer-employee relationship had not lawfully ceased and the disciplinary process was lawful

Reasoning

Following Onyango, J's unappealed ruling, the respondent lawfully issued notices to show cause. The appellant refused to attend, squandering his opportunity to be heard. Had the appellant submitted a valid notice of retirement, the outcome would have differed, since an employee cannot be disciplined after the employment relationship lawfully ends - but the purported notice was invalid.

p. 9
03

Standard of interference on a first appeal

Holding

The Court must re-assess the evidence and reach its own conclusions, but will not lightly differ from trial findings of fact unless based on no evidence or wrong principles

Reasoning

As a first appeal, the Court re-evaluates the evidence on record and arrives at its own independent conclusions. However, deference is owed to the trial judge who saw and heard the witnesses, and interference is justified only where findings rest on no evidence or on demonstrably wrong principles.

p. 8

Legal principles established

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  • An employee cannot escape a lawful disciplinary process by tendering a resignation or retirement 'with immediate effect'; a retirement notice aimed at evading disciplinary proceedings may be lawfully disregarded
  • Where the employment contract or CBA is silent on notice for termination, the default notice periods under section 35 of the Employment Act apply

Court orders

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  1. 1.The appeal is dismissed
  2. 2.The appellant to pay costs of the appeal to the respondent
  3. 3.The trial court's judgment rendered by Mbaru, J on April 27, 2020 in Nakuru ELRC Cause No 58 of 2019 is affirmed

The bench

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One judgment of the whole court — no separate or dissenting opinions.

Mohamed Abdulahi Warsame
M. WarsameJA
Currently serving
majority
majority
majority
On appeal from
Employment and Labour Relations Court, Nakuru
ELRC Cause No 58 of 2019
Jurisdiction invoked
First appeal to the Court of Appeal against the judgment of the Employment and Labour Relations Court

Relief refused

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Declaration that the disciplinary process and the resultant dismissal was null and void

The purported retirement without notice was invalid and did not preclude the disciplinary hearing; charges were issued before any purported retirement

p. 9

Retirement benefits, gratuity, leave pay and compensation under article 23(3)(e) of the Constitution

The appeal failed on the validity of the retirement, so the reliefs were unmerited

p. 9

Costs and interests both before the trial court and this Court

Costs were awarded to the respondent, not the appellant

p. 9

Costs

Appeal dismissed with costs to the respondent; the trial court's judgment affirmed

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

an employee can not escape the disciplinary process by tendering a resignation or a retirement "with immediate efiect." There exists nothing like "resignation with immediate efiect" in the employment context unless the employer waives the notice period
p. 9Resignation with immediate effect
An employee's retirement notice aimed at evading a disciplinary process is unacceptable. The key legal principle here is the need to avoid subverting due process. This is because such a retirement notice can be lawfully disregarded if it is a tactic to escape disciplinary proceedings.
p. 9Retirement to evade discipline
the charges against the appellant were issued before his retirement, his subsequent purported retirement without notice was invalid and it did not preclude him from being subjected to the disciplinary hearing
p. 9Timing of disciplinary charges
Accordingly, we dismiss it with costs to the respondent and afirm the trial court's judgment rendered by Mbaru, J on April 27, 2020 in Nakuru Employment and Labour Relations Court (ELRC) Cause No 58 of 2019. It is so ordered.
p. 9Final orders - dismissal and affirmation

Issues in the judgment

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minor

Recurring typographical corruption in the text ('efiect' for 'effect', 'afionce'/'ofience' for 'offence', 'violatioin', 'afiorded', 'difierent') suggests OCR defects in the supplied copy; quotes are reproduced as they appear

minor

The judgment describes the appellant as having 'a valid reason to subject the appellant to a disciplinary process', apparently intending 'the respondent' as the subject

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Chege v Timsales Ltd (Civil Appeal 29 of 2020) [2025] KECA 1660 (KLR)", Case Analysis (2025). Appeal from Nakuru Employment and Labour Relations Court Cause No 58 of 2019 (memorandum of appeal dated June 18, 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1660/eng@2025-10-21

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