Appellate court allows 69 years old chemist to appeal against KISCOL for unfair termination

Kwale International Sugar Company Limited (KISCOL)  processing plant in Kwale County [Courtesy]

The court of appeal has allowed a 69-year-old shift chemist employee sacked by Kwale International Sugar Company Limited (KISCOL) for attaining 60 years old to appeal the termination out of time.

Justice Agnes Murgor allowed Godfrey Nyatigi to appeal against his alleged unfair termination without notice after Justice Monica Mbaru dismissed his petition seeking Sh. 4.571,492 as compensation for wrongful termination, house allowance, service pay, and acting allowance.

Nyatigi, who was 69 years old at the time of his termination, was working in an acting capacity as deputy chief chemist at KISCOL.

Justice Murgor noted that although the record of appeal was prepared and uploaded for assessment, payment could not be processed due to system-generated invoice errors, which occasioned the delay in filing the said appeal.

“Taking the unforeseeable occurrences in the process of filing into account, and given that the length of the delay was not inordinate, I am satisfied that the Applicant (Nyatigi) has provided a sufficient explanation for the delay. Time is extended for lodging the Memorandum and Record of appeal,” said Justice Murgor.

According to Nyatigi, he was employed by KISCOL as a shift chemist from December 16, 2014, earning a gross salary of sh92,000 per month.

Nyatigi said on January 4 2016, he took over as Deputy Chief Chemist and held the position until his employment was unfairly terminated on April 30, 2023, while earning the same amount instead of sh111,000, contrary to clause 9.1 of the company's human resources policy and procedures manual (Policy).

“Despite KISCOL placing me in an acting capacity as deputy chief chemist, they refused to appoint me in writing, thereby denying me acting allowances as required under the policy,” said Nyatigi in his court submission.

Nyatige said that on February 25, 2023, when he was issued the retirement notice, he sought extensions of his employment for two years on grounds of financial obligations still pending through a letter dated April 12, 2023.

He said the termination was contrary to clause 15.3 of the policy, which required a 12-month notice to be issued in advance of retirement, but instead, he was issued a one-month notice dated February 25, 2023.

However, KISCOL denied the unstamped company policy Nyatigi relied upon and submitted.

KISCOL denied appointing Nyatigi to the position of deputy chief chemist and that he remained a shift chemist and was paid for such a role for the entirety of his employment.

In dismissing Nyatigi’s claim, Justice Mbaru said the claim for acting allowances is not justified because there was no promise, direct or remote, suggesting, proposing, or appointing Nyatigi as deputy chief chemist.

She said Nyatigi’s role, salary, and retirement are related to the single position of shift chemist.

“The office communications via email or other communications were not directed to him in his appointment as deputy chief chemist. He cannot rely on such communications to assert or claim that these created a reasonable expectation that he had been appointed to such a role,” said Justice Mbaru.

She said Nyatigi had attained the age of 69 in April 2023 and was issued with notice before the retirement date.

Justice Mbaru said the policy relied upon by Nyatige in his assertion that he ought to have been issued with 12 months’ notice was denied as the official policy of KISCOL.

She said in employment and labour relations, the employer is the lawful custodian of all work records in terms of Section 10(7) of the Act.

“The record of the respondent (KISCOL) in this regard stands that the claimant (Nyatigi) attained his retirement age and notice of retirement was lawfully issued,” said Justice Mbaru.

The judge said KISCOL had the discretion to issue a contract post-retirement, and compensation is not due as claimed.

She further said Nyatigi’s employment is not based on a minimum wage to guarantee a house allowance as sought.