Ngokonyo & 2 others v Telkom Kenya Limited
The bottom line
#Supreme Court rules 'permanent and pensionable' jobs can be terminated; no claim for future salaries.
What this practically means
#Three former Telkom Kenya employees retired early in 1991 sued for lost salaries until age 55. The Supreme Court said no. 'Permanent and pensionable' does not guarantee a job until retirement. If you are dismissed, you can only claim notice pay and terminal benefits, not future earnings. You must also try to find another job to reduce your loss.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether premature retirement of public officers in the public interest creates a legal or contractual basis for the payment of anticipatory salaries and allowances.
- 2.What reliefs should issue?
Key legal issues
#Whether premature retirement in the public interest creates a legal or contractual basis for payment of anticipatory salaries and allowances.
No. There is no statutory or contractual basis for such claims under the repealed or current Employment Act. The measure of damages is limited to notice pay, accrued benefits, and pension.
The Supreme Court reviewed the repealed Employment Act, Cap 226, and found no provision for anticipatory remuneration. It distinguished between lawful termination (which entitles an employee only to contractual notice and terminal dues) and unlawful termination (which may attract damages, but not speculative future earnings). The court held that 'permanent and pensionable' employment does not guarantee tenure until retirement, as such contracts remain terminable. It further noted that the weight of Court of Appeal authority, including Kenya Ports Authority v Silas Obengele, rejects anticipatory salary claims. The court also emphasized the duty to mitigate loss and that awards must be proportionate, not amounting to unjust enrichment.
Whether the High Court had jurisdiction to award pension benefits.
The Supreme Court did not determine this issue on its merits, as it was outside the certified question of general public importance.
The court declined to address this ground, noting that the appeal was certified on a single issue: whether premature retirement in the public interest creates a basis for anticipatory salaries and allowances. The court stated that the appellants could not expand their appeal beyond the issues delineated for consideration, citing Muriithi v Janmohamed.
Legal principles established
#- 'Permanent and pensionable' employment does not guarantee tenure until retirement; contracts remain terminable.
- No statutory basis exists for claiming anticipatory salaries or future earnings under Kenyan employment law.
- Damages for wrongful dismissal are limited to notice pay, payment in lieu of notice, and contractual terminal benefits.
- An employee has a duty to mitigate any loss arising from unlawful termination.
Court orders
#- 1.The appeal dated 14th March, 2025 and filed on 18th March 2025 is hereby dismissed.
- 2.The judgment of the Court of Appeal dated 26th July 2024 in Civil Appeal No. 394 of 2017 is hereby confirmed.
- 3.Each party will bear their own costs of the appeal before this Court.
- 4.We hereby direct that the sum of Kshs 6,000/- deposited as security for costs upon lodging of this appeal be refunded to the depositor.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Court of Appeal at Nairobi
- Civil Appeal No. 394 of 2017
- Jurisdiction invoked
- Article 163(4)(b) of the Constitution of Kenya, 2010
Relief refused
#Setting aside the Court of Appeal judgment and allowing the cross-appeal for anticipatory salaries, allowances, and pension benefits
The claim for anticipatory salaries and allowances lacks a statutory foundation under both the repealed and current Employment Act; the Court of Appeal correctly dismissed the suit.
Costs
Each party will bear their own costs of the appeal before this Court.
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 designation of employment as 'permanent and pensionable' does not guarantee tenure until retirement age. Such contracts remain terminable, subject to the law and terms of service.
Claims for anticipatory salaries or future salary earnings lack a statutory foundation under both the repealed Employment Act (Cap 226) and the current Employment Act, 2007.
The general measure of damages does not extend to salaries for the unexpired period to retirement age. Remedies are generally confined to notice pay, payment in lieu of notice, and contractual terminal benefits.
The appeal dated 14th March, 2025 and filed on 18th March 2025 is hereby dismissed.
Each party will bear their own costs of the appeal before this Court.
Key timeline
#Practical implications
#Limit damages claims to notice and benefits
Advise clients that anticipatory salary claims are not recoverable. Focus on notice pay, accrued benefits, and pension. Emphasize the duty to mitigate loss. Use this case to oppose speculative future earnings claims in wrongful dismissal suits.
Review 'permanent' contract language
Understand that 'permanent and pensionable' does not guarantee lifetime employment. Ensure termination procedures comply with regulations, but know you are not liable for future salaries beyond notice and terminal benefits. This reduces financial risk in restructuring.
Know your termination entitlements
If you are dismissed, you are entitled to notice pay and contractual benefits, not future salaries until retirement. You must actively seek new work to reduce your loss. Consult a lawyer to ensure you receive what you are legally owed.
Frequently asked questions
#Can I claim future salaries if I am unfairly dismissed in Kenya?+
No. The Supreme Court ruled that you cannot claim salaries you would have earned until retirement. Damages are limited to notice pay, payment in lieu of notice, and contractual terminal benefits.
What does 'permanent and pensionable' mean in Kenya?+
It does not guarantee a job until retirement. The Supreme Court confirmed that such contracts can still be terminated according to the law and terms of service. You are not entitled to future earnings beyond notice and benefits.
What damages can I get for wrongful termination in Kenya?+
You can get notice pay, payment in lieu of notice, and any contractual terminal benefits like gratuity or pension. You cannot claim speculative future earnings. You must also try to find another job to reduce your loss.
Is premature retirement in public interest legal in Kenya?+
Yes, but it must follow proper procedures. In this case, the retirement was procedurally unlawful because employees were not heard. However, the remedy does not include future salaries; only notice pay and terminal benefits apply.
Later judgments citing this (3)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Namayi v Public Service Commission & 3 others (Constitutional Petition E217 of 2025) [2026] KEELRC 2425 (KLR)[2026] KEELRC 2425 (KLR)20 Aug 2026applied
- Kuria v Kenya Broadcasting Corporation (Civil Appeal 382 of 2018) [2026] KECA 971 (KLR)[2026] KECA 971 (KLR)15 May 2026followed
- Karanja v Taphe Guest House (Civil Appeal 196 of 2019) [2026] KECA 372 (KLR)[2026] KECA 372 (KLR)27 Feb 2026followed
Cite this brief
#Cite this brief
Caselaw, "Ngokonyo & 2 others v Telkom Kenya Limited", Case Analysis (2025). Petition E009 of 2025. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2025/75/eng@2025-12-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.