Anticipatory Salaries vs. Contractual Termination in Kenya: Case overview of Ngokonyo vs. Telkom

A. Introduction The dispute in Francis Waithaka Ngokonyo & 2 Others v. Telkom Kenya Limited1 originated over three decades ago, centring; on the premature retirement of three long serving employees of the Kenya Posts and Telecommunications Corporation (KPTC), the predecessor to Telkom Kenya Limited. The appellants, Francis Waithaka Ngokonyo, Sudi Abdalla, and Andrew Muga, were seasoned professionals who had risen to senior managerial positions after decades of diligent service. The factual catalyst for the litigation occurred on July 19, 1991, when the appellants were placed on compulsory leave due to allegations of “persistent laxity,” the specifics of which were never disclosed. Despite their attempts to seek an audience with the management, they were formally retired in the “public interest” on October 22, 1991. At the time of their retirement, the appellants were aged 41, 43, and 50, respectively well before the mandatory retirement age of 55. Following their retirement, the appellants f iled separate suits in 1992, which were eventually consolidated. In 2001, a High Court judgment in their favour was nullified by the Court of Appeal on technical grounds and remanded for re-hearing. In the second High Court proceeding, Havelock, J. ruled in 2013 that the retirement was unlawful, citing a breach of the principles of natural justice and specific internal regulations that required the Managing Director to allow employees to make representations before such retirement. The High Court awarded the appellants substantial sums, including “anticipatory salaries,” the earnings they would have received had they served until age 55. However, the Court of Appeal reversed this decision in 2024, setting aside the award for anticipatory salaries because they were speculative and led to “unjust enrichment.” The matter ultimately reached the Supreme Court to determine a singular issue of general public importance: whether premature retirement of public read more...