Zainab Bintifundi Kiwasi [Suing in her capacity as the Personal Representative of Harry Kitao Stephens] v TPS Eastern Africa Limited [2021] KEELRC 1027 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR

RELATIONS COURT

AT NAIROBI

CAUSE NUMBER 1964 OF 2014

[Formerly Nairobi H.C.C.C No. 294 of 2009]

BETWEEN

ZAINAB BINTIFUNDI KIWASI[Suing in her capacity as the Personal

Representative of HARRY KITAO STEPHENS]....................CLAIMANT

VERSUS

TPS EASTERN AFRICA LIMITED.......................................RESPONDENT

Rika J

Court Assistant: Emmanuel Kiprono.

Professor Albert Mumma & Company Advocates, for the Claimant.

Namachanja & Mbugua Advocates, for the Respondent.

JUDGMENT

Case history.

1. This Claim was initiated at the High Court in Nairobi, as H.C.C.C No. 294 of 2009, through a Plaint filed on 4th June 2009.

2. It was initiated by Harry Kitao Stephens [Claimant], who unfortunately, died on 9th March 2018.

3. It was transferred to the E&LRC through an order of the High Court on jurisdictional ground, and registered as Cause No.  1964 of 2014. Kitao’s Widow, Zainab Bintifundi Kiwasi was substituted in place of her Husband.

4. For some unclear reasons, the prosecution of the Claim appears to have been considerably sluggish, both at the High Court and the E&LRC.

5. Kitao was a Person with Disability.

6. On 10th October 2012, the Director, National Council for Persons with Disabilities wrote to the Executive Officer High Court, asking the High Court to expedite hearing of the Claim, in terms of Section 38 of the Persons with Disabilities Act.

7. The High Court transferred the Claim to the E&LRC in 2014, 5 years after the Claim was filed, and the E&LRC concluded the matter in 2021, 7 years after the Claim reached its docket. In total, the Claim has taken 12 years to be concluded.

8. The delay is regretted, and the Court must apologize to the Parties, in particular because Section 38 of the Persons with Disabilities Act, was not given due regard, and Kitao passed away while his Claim dragged in the corridors of justice.  It is noted that when the hearing finally took off, it was finalized on the same day. Why would it take 12 years to come to the hearing?  It is possible that perhaps, the Parties were themselves at fault, for the delay, but in all cases, the Court is in full control, dismissing for want of prosecution, Claims where Claimants have failed to prosecute. The Court would have acted if non-prosecution was on account of Parties’ indolence. Apologies to the Parties.

Pleadings.

9. The Claimant avers, he was employed by TPS Eastern Africa Limited, formerly TPS Holdings Limited. He worked as a Company Registrar for a period of 32 years from 1974, to 1st August 2006, when he avers, he was irregularly and prematurely retired, ostensibly on the ground of ill-health.

10. He rendered diligent service, and was promoted regularly. This was until the year 2005, when he started to suffer poor eyesight. The illness resulted from the nature of his work.

11. He sought specialized eye treatment at Apollo Eye Hospital in Hyderabad India, which was financed by the Respondent. He did so initially on 2 occasions, and experienced substantial improvement. He was to attend a 3rd session in India in Mid-February 2006.

12. He consulted the Respondent, who advised him that he would travel for his 3rd session in April 2006. This was changed by the Respondent, to August 2006.

13. He was surprised to receive a letter from the Respondent, on or around 28th July 2006, retiring him on medical ground, effective 1st August 2006.

14. At the time of retirement, he earned a monthly salary of Kshs. 108,500.

15. He was set to retire at the age of 60. Retirement was callous. There was no notice, save for 3 days given from the date he received retirement letter.

16. The Claimant avers that retirement was malicious, irregular, unlawful and in bad faith. It did not follow the laid down procedures and was flawed because: he was sent on early retirement while he was due for travel to India for treatment in the same month of August 2006; it had not been established that the Claimant was inhibited in performance of his work by his illness; disciplinary regulations, policies and procedures were disregarded; he was misled that the Respondent would finance his 3rd  treatment session in India; and misled that the Respondent overall, would finance his treatment. The misleading by the Respondent, ultimately cost the Claimant loss of eyesight.

17. The Respondent deducted N.S.S.F contributions from the Claimant’s salary for the years 1976 and 1978, but failed to forward the same to the Fund. He was denied annual leave, leave allowance for 2 years, mileage and home entertainment allowances for the leave period.

18. He prays for Judgment against the Respondent for: -

a. Salary for the remainder of the period the Claimant would have continued to work until retirement.

b. N.S.S.F contributions for 1976 and 1978.

c. Annual leave for 2 years.

d. Leave allowance for 2 years.

e. Mileage allowance for 2 years.

f. Home entertainment allowance for 2 years.

g. Pension.

h. Severance pay.

i. General damages.

j. Costs.

k. Interest.

19.  The Respondent filed its Statement of Defence on 9th July 2009. It is conceded that the Claimant was employed by the Respondent from 1974. However, he set off as a Credit Controller until 1998, when he became a Registrar.

20. It is denied that the Claimant’s eye problem was caused by the nature of his work. The Claimant was diabetic from about 1998. He also suffered hypertension. Diabetes caused his eye illness. The Respondent had in place Medical Scheme, and the Claimant’s travel to and treatment in India, were financed under this Medical Scheme.

21. He was retired on medical grounds after consultation between the Parties, and on advice of the Respondent’s Doctor. He was not forced to retire early, retired maliciously, irregularly or unlawfully. He was aware that he was being retired on medical grounds, and therefore the short notice, cannot constitute breach.

22. The Respondent denies allegations of malice, taking the position that: the Claimant was aware he suffered ill-health; he was retired with the full knowledge of the circumstances; regulations, procedures and policies were  not breached; he was availed treatment on the basis of his medical coverage; it was established before retirement that the Claimant could not discharge his role; his services were not terminated, but he was retired on medical grounds; there was no assurance that the Respondent would finance his 3rd session in India, as further travel and treatment depended on the status of his medical cover; and the Respondent did not mislead the Claimant whatsoever, regarding financing of his travel and treatment.

23. The Respondent denies it deducted and failed to remit N.S.S.F contributions.  No Statements of Account establishing this prayer, were provided by the Claimant.

24. The Respondent offered to the Claimant terminal benefits in accordance with his contract. He declined the offer. The terminal benefits claimed have no foundation. He declined to collect terminal benefits due, and offered to him under contract. Pension due to the Claimant was available, but again, the Claimant declined to collect the same from the Trustees of the Pension Scheme. He is not entitled to severance pay at all. The Respondent did not cause loss of Claimant’s eyesight. If indeed the Claimant lost his eyesight, it was through his refusal to collect terminal and pension dues, which would have facilitated further treatment in India. The Respondent asks the Court to dismiss the Claim with costs.

25. In his Reply to Defence filed on 16th July 2009, the Claimant reiterates the contents of his Plaint. He adds that the Respondent did not consult him on retirement; he was not issued adequate notice; he was misled on further travel and treatment in India; and he was not apportioning blame to the Respondent for his illness, but simply stating that the Respondent should have informed him it was not going to finance his travel and treatment, which would have enabled him look for alternative funding. Instead of coming out cleanly with such information, the Respondent was busy conspiring how to retire the Claimant prematurely, on medical ground.  The Claimant was not involved in any process to establish his incapacity to continue serving. He reiterates he has documents from the N.S.S.F confirming his prayer on N.S.S.F contributions. He was never offered terminal benefits freely. The Respondent attempted to arm-twist the Claimant into discharging the Respondent of further liability.

Evidence.

26. Zainab gave evidence for her Husband, while Respondent’s Human Resource Director, Catherine Wambui Waruhiu, gave evidence for the Respondent, on 5th March 2021. Hearing closed on the same day. The Claim was last mentioned on 17th June 2021 in a virtual session, when Parties confirmed filing and exchange of their Submissions. Judgment was reserved for 28th October 2021, but has been completed earlier, and Parties notified of its delivery, on the date indicated at the end of the Judgment.

27. Parties recorded a consent order on adoption of their respective document, as their exhibits.

28. Zainab adopted as Claimant’s evidence, her Witness Statement, filed on 15th September 2020. The Witness Statement is a replica of the Plaint, as summarized at the outset in this Judgment. She added on cross-examination that she did not know if the Medical Cover was sufficient to cover the Claimant’s entire travel to, and treatment in, India. The Respondent was to blame for the Claimant’s blindness. The illness was caused by the nature of work assigned to the Claimant. She confirmed that the Claimant worked as an Accountant between 1974 and 1998. He became Registrar in 1998. He dealt with shares in the registry. He was confirmed to be diabetic, prior to 1998. He had hypertension also. He had personal Doctors. Zainab was aware that diabetes could result in blindness. She did not have medical evidence, showing that the nature of work, caused blindness. The Claimant discussed his condition with Serena [part of the TPS Group]. It was difficult to work at the shares registry alone. Treatment should have been completed before retirement.

29. Zainab continued on cross-examination, that she was not aware, the Claimant was offered financial assistance to travel to India which he declined. Pension was regulated by Trustees. She did not know that the Claimant declined to pursue payment with the Trustees. She was not aware that the Medical Cover had expired after the 1st and 2nd travel to India. It is true he would have been able to travel outside Kenya for treatment a 3rd time, if as stated by the Respondent, he was offered money by the Respondent after retirement. The money was coming from Serena, so it must have had something to do with TPS. The Claimant did not agree with the Statements of Account from the Pension Trustees, but accessed his pension, after some time. Zainab said, her Husband was let down by the Respondent, after 32 years of service. He was prematurely retired.

30.  Redirected, she told the Court that there was dispute on the amount payable as pension. This was resolved and pension paid around 2014/2015. Termination was in 2006. She did not know of financial assistance extended to her Husband, after termination. The Claimant saw different Doctors, but results were not given to him. Referral was by TPS, not Serena. He wished to be paid service, based on the years worked. He was retired before he could travel the 3rd time.

31.  Human Resource Director, Catherine Wambui Waruhiu, similarly relied on her Witness Statement and Documents filed by the Respondent, in her evidence. These mirror the contents of the Statement of Defence, as summarized above.

32. She told the Court on cross-examination that she could not recall, how long the Claimant served the Respondent. She joined the Head Office in 2002, having worked elsewhere before. The Claimant left employment in 2006. She agreed that the Claimant worked over 30 years.  She was employed in 1991.

33. She observed the Claimant. She observed and it was also reported, that the Claimant had some medical issue, which affected his work. He got to a point where he could not see. Illness was gradual, falling within the period 2005/2006. She was involved in his treatment. The Insurance Company contracted by the Respondent catered for his travel and treatment abroad. The Respondent was involved in other ways also. It instructed the Insurance Company, to find a hospital and facilitate travel. He was to travel a 3rd time. He was seen by various Doctors locally, under reference from the Respondent. The Doctors recommended various destinations including UK, India and South Africa where the Claimant could be attended to. The Respondent relied on its own Doctor Kamau, in reaching the retirement decision.

34. The Claimant’s condition had deteriorated. The Respondent said it would retire him, by end of the year 2006. It wrote a letter dated 8th May 2006, to Dr. Kamau seeking that he reviews the Claimant’s condition.  This letter was not copied to the Claimant. There was already a decision to retire him. Dr. Kamau replied on 19th June 2006, recommending that it was not likely that the Claimant would be well enough to continue with his duty. It was the view of Dr. Joshi, one of the Doctors involved in review, that if the Claimant’s remaining eye was not operated on urgently, he would lose his eyesight totally.

35. Retirement letter is dated 26th July 2006. It was handed to the Claimant by Wambui on the same date. It became effective 1st August 2006, some 4 days later. Catherine told the Court, another Employee of the Respondent, Charles Obonyo, was retired in 1995. His letter of retirement shows he worked for 18 years, and was paid among others, gratuity at the rate of 21 days’ salary for every completed year of service, and notice of 4 months. Pension Scheme was contributory, and Obonyo was a member.

36. Redirected, Catherine told the Court that Obonyo retired in 1995, while the Claimant did so 11 years later, in 2006. The Claimant was not doing anything at work at the time of retirement. His Medical Cover had expired at the time he intended to travel a 3rd time. The Respondent considered all Doctors’ Reports, not just Dr. Kamau’s, in retiring the Claimant.

37. There are 2 issues, in this dispute, as broadly understood by the Court- whether the Claimant was retired lawfully and regularly; and whether he merits the remedies pleaded.

The Court Finds: -

Non-contentious facts.

38. The facts relating to the Claimant’s employment history, from 1974 to 2006, are largely uncontested.

39. He was employed by TPS East Africa Limited, formerly TPS Holdings Limited, between 1974 and 2006.

40. He initially worked as Credit Controller. He became Company Registrar in 1998. He was not Company Registrar throughout as suggested in his Pleadings.

41. From the Employees’ Handbook exhibited by the Claimant, TPS stands for Tourism Promotion Services [Management] Limited. The Company runs Hotels in Kenya and the rest of East Africa Region, under the famous brand name, Serena.

42. The Claimant was retired by the Respondent on medical grounds, with effect from 1st August 2006. The letter retiring him, signed by the Respondent’s Witness, Group Human Resource Manager Catherine Wambui Waruhiu, is dated 26th July 2006.

43. Before delving into other issues in dispute, it must be noted from the outset, that the Respondent offered to pay the Claimant certain benefits, through the letter of retirement.

44. These include: -

a. 50 days’ annual leave owed.

b. Leave allowance for 2 years at the rate of Kshs. 4,000 per year.

c. Home entertainment claim for the leave period.

d. Mileage claim for the leave period.

e. 6 months’ basic salary being the retirement gift.

45. Specific figures were not assigned to some of the above items. This however is an arithmetic exercise, which ought to have been completed by the Parties, with the aid of their respective Counsel.

46.  From the evidence on record, these benefits were not paid and have not been paid, 15 years on. The Respondent states that the Claimant declined its offer for terminal dues, and pension from the Scheme. The pension dispute was resolved in 2014/ 2015, a considerable time after it arose.

47. Why did not the Claimant receive what was offered at the time it was offered, either directly or through his Advocates, on without prejudice basis? He could even have asked the Respondent to deposit the offer in Court, if he was not comfortable receiving the offer in any other mode. He alluded to attempts made to arm-twist him into discharging the Respondent from further liability. There is no evidence of arm-twisting.

48. It is ordered that the Respondent shall pay to the Claimant, terminal benefits offered in the retirement letter, including 50 days’ annual leave; leave allowance for 2 years at the rate of Kshs 4. 000 annually; home entertainment for the leave period; mileage claim for the leave period; and 6 months’ basic salary being the retirement gift.

Whether retirement was regular and lawful.

49. The Claimant unfortunately suffered ill-health. From the medical records submitted as his exhibits, the illness was long-term, and there is no reason to hold that illness was occasioned by the nature of his work. It was not an occupational illness.

50. A Report contained in his bundle of documents, prepared by Dr. Paul N. Ngugi, shows that in fact, the Claimant suffered type 2 diabetes since 1992. As a result, he was at the time of the Report, 16th June 2007, functionally blind. This Report is not contested.

51. There are various other Medical Reports, filed by the Claimant, confirming that he suffered diabetes. The Reports link his eyesight problem to that condition. There is no medical evidence suggesting that his role as Registrar, or Credit Controller, occasioned the Claimant’s diminution and eventual loss of eyesight. Diabetes and loss of eyesight, were not caused by the nature of the work performed by the Claimant. There is no medical evidence suggesting that his work caused his illnesses.

52. The Claimant also states that the Respondent is to be blamed, if not for placing the Claimant in a work environment unsuitable to his eye-health, for misleading the Claimant that the Respondent would finance his treatment to the end.

53. This position again is not supported by evidence. Prior to retirement, the Claimant had exhausted his Medical Cover with APA Insurance Company. He had travelled to India’s Apollo Hospital twice for specialized eye treatment, financed under his employment Medical Scheme.

54. He was on advice of various Doctors, to have further specialized treatment in India, UK or South Africa. If the Medical Cover was exhausted, there does not seem to have been much the Respondent could have done, to assist the Claimant, beyond what the Respondent did. The Claimant did not adduce evidence establishing that the Respondent offered to finance his treatment unlimited. There is no evidence that the Claimant was misled into believing the Respondent would step in after the Medical Cover expired, and finance Claimant’s travel and treatment.

55. There is evidence as concluded above, that the Respondent offered the Claimant terminal benefits. The Claimant disputed the offer. The Tourism Promotion Services Pension Scheme offered to pay the Claimant 1/3 of his accumulated benefit in the form of a cash lump, while 2/3 would purchase an insured life annuity. APA Insurance also offered the Claimant Kshs. 250,000. There was a collective effort made by concerned Parties, after the Claimant’s regular Medical Cover was exhausted, to see him attend further treatment. Unfortunately, there was prolonged dispute involving these payments, resulting in the Claimant’s inability to travel for treatment in India, UK or South Africa.

56. Although the Parties did not raise the issue, it is always a consideration on termination of employment through medical retirement, to enquire if the Employer extended reasonable accommodation to the Employee, before arriving at the decision to retire the Employee.

57. Reasonable accommodation requires that the Employer has explored the possibility of assigning the Employee other responsibilities, which would not require in this instance, eyesight. It would also require that the Employer has considered adjustment of the work environment, and provision of assistive working devices, to enable the stricken Employee continue working.  The concept of reasonable accommodation is discussed well in decisions of the E&LRC, such as Juliet Mwongeli Muema v. Smollan Kenya Limited [2019] e-KLRand Kenya Plantation and Agricultural Workers Union v. Rea Vipingo Plantations Limited & Another [2015] e-KLR.

58. The medical records suggest that the Claimant’s reduced eyesight was a danger to himself and those working around him. The comprehensive opinion of Dr. Onyango- Ogony dated 8th April 2006, was that the Claimant should consider retirement on medical grounds, or switch to other areas of responsibility, where good eyesight was not required. This Report hints at reasonable accommodation.  Dr. Paul N. Ngugi, whose report was prepared the year after the Claimant was retired, on 16th June 2007, confirmed that the Claimant was now functionally blind. The Claimant did not plead or give evidence on alternative roles he could have discharged with his impaired vision. He did not suggest that there were visual aids he could be supplied with, to enable him continue discharging his role.  The Respondent put in resources, within allowable contractual and statutory limits, to see the Claimant access specialized treatment.  In short, the Claimant did not plead or give evidence suggesting he was denied reasonable accommodation by the Respondent. The Respondent in conjunction with APA Insurance, not only enabled the Claimant to travel and be treated in India on 2 different occasions; they identified the Hospital where the Claimant received specialized eye treatment. Beyond this, the record indicates that the Respondent did not object to the Claimant having long periods of sick off.  The Respondent told the Court that the Claimant was doing nothing at work, around the time he was retired. Overall, the Claimant was reasonably accommodated.

59. Medical evidence persuades the Court, that there was nothing more, in terms of offering the Claimant medical care, and assisting him to go on working, the Respondent could have done. The Claimant suffered debilitating illnesses, diabetes and hypertension. Diabetes was a long-terms affliction, from 1992, which culminated in loss of eyesight.

60. On notice, the Court has no difficulty in agreeing with the Claimant, that the Respondent did not treat him fairly or lawfully. The letter of retirement on medical grounds issued on 26th July 2006. Effective date was 4 days later, on 1st August 2006.

61. The Employees’ Handbook exhibited by the Claimant, under the Retirement Clause refers to Human Resource Policy Manual. The Human Resource Policy Manual does not seem to have been availed to the Court by the Parties.  The Claimant’s letter of employment similarly does not seem to be on the record. The Handbook states that an Employee could be retired on medical grounds, but does not give details of such retirement, which are probably contained in the Human Resource Policy Manual. The Claimant pleads that retirement went against human resource policies, procedures and regulations, but did not avail the Human Resource Policy Manual, specifying which clauses were flouted.

62. The Claimant however exhibited a letter from Group Personnel Manager, J.N. Karungu, dated 4th September 1995, to a former Employee Charles Obonyo, who left employment on retirement.

63. Although this retirement happened 11 years before the Claimant’s, and was consensual early retirement, rather than a contested medical retirement, the letter is relevant because it captures practice or policy of the Respondent, with respect to retirement of its Employees.

64.  Obonyo, like the Claimant, was offered pension, leave travelling allowance and retirement gift equivalent of 6 months’ salary.

65. In addition, Obonyo was offered 4 months’ termination notice, having worked for 18 years. The Claimant herein worked for 32 years, and was offered 4 days’ notice. Catherine Wambui Waruhiu told the Court that the Respondent intended to retire the Claimant at the end of 2006. This would have afforded the Claimant notice period of at least 4 months, which was extended to Obonyo. Why was it reduced to 4 days for the Claimant? It is unacceptable to argue as the Respondent does in its Pleadings, that the Claimant was aware he was being retired on medical ground, and short notice would therefore not amount to breach.

66. The Court finds that notice issued to the Claimant was insufficient. The Respondent ought to have accorded the Claimant reasonable notice, particularly because it was known that the Claimant was due for further treatment abroad, around the time he was retired. On 5th July 2006, the Claimant had received an appointment for eye surgery in South Africa to be performed on 10th July 2006.  While it was not at this time, for the Respondent or the Insurance Company to finance this treatment, it would have served the Claimant well, if he was granted adequate notice of retirement. It would have given him time to consider what was being offered by the Respondent, the Pension Scheme and the Insurance, to finance his travel and treatment. He would have had time to raise funds to finance his treatment and generally organize his life post-the medically induced retirement. The short notice of 4 days, was inappropriate and probably unsettling to an Employee who was battling severe illnesses. It was way out of line, even considering the minimum statutory period available at the time, to the Claimant.

67. Retirement was on lawful ground. It was medically justifiable. The Claimant was offered adequate medical assistance, in accordance with the applicable medical scheme. He was offered assistance beyond his Insurance Cover. He disputed terminal dues and pension payable, complicating his financial ability to cater for his treatment after retirement. Retirement was however, not preceded by adequate notice or consultation with the Claimant.

Remedies.

68. The Claimant left employment on medical grounds. Doctors prepared Reports establishing that the Claimant was ill, and prevented by his illness from normal performance of his work. There was little prospect, of him overcoming his impairment, to resume normal work, and there would be no basis, in the respectful view of the Court, to pay him salaries for the period between his medical retirement, and expected date of mandatory retirement. He did not propose alternative, lighter or suitable work. The Respondent cannot be blamed for anything, other than issuing a short notice, that would be deemed to have accelerated the Claimant’s retirement date.  The prayer for anticipated salaries is declined.

69. The prayer for N.S.S.F contributions, for the years 1976 and 1978, 2 years and 4 years respectively, after the Claimant was employed by the Respondent, made 33 years and 31 years respectively after the cause of action arose, are too remote in time, and unsupported by evidence, to be granted. Why would the Claimant wait for over 30 years, to claim statutory deductions were not remitted? This Court has held in the past, in any event, that deducted but unremitted statutory obligations, should not revert to the pocket of the individual Employee; payment ought to be pursued with the relevant statutory body, to be applied for the statutory function, it was intended. The prayer for refund of N.S.S.F contributions is declined.

70. Leave allowance, annual leave entitlement, mileage claim and home entertainment allowance, were all offered by the Respondent through the letter of retirement, and have been upheld in this Judgment.

71. Pension was paid, after a long period of mutual and wasteful grandstanding,

72. The notice of retirement of 4 days, issued to the Claimant, as concluded above was way out of the minimum statutory standard. Obonyo, who had worked for 18 years, and who retired 11 years before the Claimant, was paid notice equivalent of 4 months. The Claimant is allowed 4 months’ salary in lieu of notice.

73. Termination of the Claimant’s contract took place on 1st August 2006, before the advent of the Employment Act 2007. Section 36[6], barring Employees who are members of registered Pension Schemes or Provident Funds, from receiving pay in recognition and reward of their years of service, was not in force. Obonyo was paid gratuity at the rate of 21 days’ salary for each completed year of service. There was no explanation why the Claimant was denied this, having worked almost twice the period Obonyo worked. Given the circumstances of the Claimant’s exit from employment, his considerable period in employment ought to have been recognized and rewarded, and added to his send-home package. The 6 months’ pay characterized as retirement gift was paid to Obonyo in addition to gratuity, and cannot conceivably have been offered to the Claimant, as the totality of recognizing and rewarding his 32 years of service. Obonyo also received pension.

74. The Respondent shall pay to the Claimant, gratuity at the rate of 21 days’ salary for each of the 32 years completed in service.

75. The prayer for general damages is declined. The Court has concluded that retirement was on lawful ground. Notice was irregular and unlawful, but this has been corrected by award of 4 months’ salary in lieu of notice.

76. Costs to the Claimant.

77. The Claimant did not receive part of the terminal benefits at the time they were offered. This cannot be blamed on the Respondent, because as concluded above, the Claimant himself declined receipt until certain issues raised by him, were resolved. It would not be proper to grant an order on interest, from the date of retirement.

78. It is however imperative that the Judgment herein is satisfied in favour of the Claimant’s estate as soon as possible, the dispute herein having been filed 13 years ago.

79. Interest shall therefore be payable on the principal sum, at court rates, 30 days from the date of this Judgment.

IN SUM, IT IS ORDERED: -

a. The Respondent shall pay to the Claimant terminal benefits as offered in the letter of retirement, including annual leave pay of 50 days; leave allowance for 2 years at Kshs. 4,000 per year; mileage claim for the leave period; home entertainment allowance for the leave period; and 6 months’ basic salary as retirement gift.

b. In addition, the Respondent shall pay to the Claimant 4 months’ salary as notice, and gratuity at the rate of 21 days’ salary for each of the 32 completed years of service.

c. Costs to the Claimant.

d. Interest granted on the principal sum, chargeable after the end of 30 days, from the date this Judgment is delivered.

Dated, signed and released to the Parties electronically, under Ministry of Health and Judiciary Covid-19 Guidelines, at Nairobi, this 10th day of September 2021

James Rika

Judge