PETER NJUGUNA CHEGE VS TIMSALES LIMITED [2025] KECA 1660 (KLR)
Factual background
For Peter Njuguna, the Court of Appeal judgement on this matter delivered on 21st October 2025, was a resounding reminder that we cannot, in most cases, escape the consequences of our actions. Peter Njuguna was among the employees of Timsales Limited who were locked out of the Respondent’s premises on allegations that they had participated in unprotected protests and/or abscondment of duty. Aggrieved, the Appellant’s union initiated a case before the Employment and Labor Relations court at NAIROBI, challenging the lock-out. The union lost the case, with the court directing disciplinary hearings to proceed.
Following the ruling, a notice to show cause was issued to the Appellant and co for absconding duty and malicious damage to the Respondent’s property on 1st July 2019. The Appellant, instead of making his case before the disciplinary committee, purported to retire around the same time without giving any notice to his employer. He relied on a CBA clause that allowed retirement once an employee attained the age of 47. When the disciplinary proceedings were still ongoing, he lodged a claim before the Nakuru ELRC seeking declarations that he was in continuous employment since 1997, that the disciplinary process post-retirement was null and void, that the refusal to pay retirement benefits was an unfair labour practice, and compensation for violation of constitutional labour rights. The Trial court dismissed his claim, finding, inter alia, that the purported retirement amounted to a circumvention of a lawful disciplinary process and therefore was invalid. Agrieved, the Appellant lodged this appeal.
Issues for determination
The main issue for determination before the appellant court was whether the Appellant’s purported resignation was valid and whether he was entitled to the relief sought.
Whether the Appellant’s purported retirement was valid
The Court of Appeal agreed with the trial court, holding that an employee cannot unilaterally retire or terminate his employment contract without issuing a proper notice to defeat a lawful disciplinary process. According to the Appellate court, validating the Appellant’s purported resignation would amount to sanctioning gross misconduct in employment. The court found refuge in section 80 of the Labour Relations Act that prohibits employees from engaging in unlawful and unprotected protests.
The court further stated that an employee cannot wake up and retire without proper notice to the employer. There is no such thing as resignation or retirement with immediate effect unless the employer waives the notice period. An employee who intends to retire or terminate his or her employment relationship must issue proper notice in accordance with an existing CBA or the employment contract, or in the absence of such, the notice must be issued in accordance with section 35 of the Employment Act. The Appellant’s purported retirement on the same day of notice was therefore invalid and unlawful.
Having found the alleged resignation to be invalid, the court dismissed the Appellant’s claims for relief. The Appeal was dismissed with costs to the respondents.
Key take-aways
- The law does not protect employees who engage in unprotected protests. Engaging in such protests amounts to a breach of employment contract, which allows an employer to initiate disciplinary proceedings against employees participating in such unlawful protests.
- An employee cannot terminate employment relationship to evade a lawful disciplinary action. Such action is invalid and amounts to an attempt to defeat the employer’s unfettered right to discipline an employee, provided he adheres to the law and the principles of natural justice.
- There is no such thing as resignation or retirement with immediate effect in Kenya’s employment context. An employee who intends to retire or resign must issue proper notice to the employer in accordance with the employment contract, CBA or the law. The obligation to issue a termination notice by an employee is mandatory unless waived by the employer.
- Retirement under a CBA must comply with the terms of the CBA and the applicable law.
Conclusion
While an employee has the right to unilaterally terminate his or her employment relationship with an employer, he or she must give proper notice of the intended termination of the employment relationship to the employer. Furthermore, the intended termination has to be in good faith and not as an attempt to defeat a lawful disciplinary process.
