Mulwa v African Medical and Research Foundation (Cause 414 of 2012) [2023] KEELRC 1947 (KLR)
The bottom line
#Kenya's Employment Court ruled that an employee who retired, rather than being made redundant, cannot claim severance pay if their contract expressly excludes retiring staff.
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 claimant, having retired rather than been declared redundant, is entitled to severance pay under clause 19 of the service agreement of September 27, 2002
Key legal issues
#Entitlement to severance pay upon retirement under clause 19 of the service agreement
The claimant, who retired in 2015 rather than being declared redundant, falls within the exception in clause 19 and cannot claim severance pay; the earlier ruling's contrary statement rested on a misreading of clause 19 and was corrected on review.
The court's ruling of February 3, 2017 erroneously rendered clause 19's phrase 'in exception of cases' as 'in exceptional cases', altering its meaning. On the respondent's application dated February 15, 2017, the court corrected the error under rule 33. Properly read, clause 19 denies severance pay to a retiring employee; the court had already found the claimant was not declared redundant but continued in employment until retirement, drawing salary and allowances from the respondent.
Legal principles established
#- An employer may assign an employee duties at any site provided those are the duties the employee contracted to perform, including within a sister or subsidiary company.
- Where clause 19 of the service agreement excepts retiring employees from severance pay, an employee who retires cannot claim severance pay.
Court orders
#- 1.Declaration that the claimant, having retired, was excepted from payment of severance pay under clause 19 of the service agreement and cannot claim the same ('It is so ordered.')
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Rule 33 of the Employment and Labour Relations Court (Procedure) Rules (review/correction of the court's own ruling)
Relief refused
#Claim to severance pay
Clause 19 of the service agreement excepted a retiring employee from payment of severance pay; the claimant retired in 2015 and was not declared redundant
Costs
No costs order recorded in the judgment
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.
The consequence therefore is that the claimant having retired was excepted from payment of severance pay as per clause 19 of the service agreement hence cannot claim the same. It is so ordered.
An employer has the discretion to assign an employee duties at any site provided the duties to be performed are those which the employee contracted to perform.
The court acknowledged the error and exercising it’s powers under rule 33 of the court’s rules corrected the error.
Issues in the judgment
#The judgment does not state the parties' full names, the case number or the petition/suit reference; the claimant is never named.
The opening numbered paragraphs 1 and 2 appear empty/truncated, so the context of the suit is not fully set out.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mulwa v African Medical and Research Foundation (Cause 414 of 2012) [2023] KEELRC 1947 (KLR)", Case Analysis (2023). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1947/eng@2023-07-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.