Can an employee walk away from their job and instantly free themselves from a pending disciplinary process? Many employees assume the answer is yes. Many employers fear it.
But the Court of Appeal’s decision in Peter Njuguna Chege v. Timsales Limited [2025] KECA 1660 settles the debate, and its impact is significant for HR managers, union officials, and employees across Kenya.
A Short Background: When “Retirement” Becomes a Tactic
After employees at Timsales Limited were locked out for allegedly participating in unprotected protests, disciplinary processes were reinstated by the Employment Court. One employee, Peter Njuguna, immediately attempted to “retire” under a CBA clause allowing retirement at age 47.
He gave no notice, skipped the disciplinary hearing, and then filed a claim insisting that his retirement was valid and that he deserved benefits. Both the Employment Court and the Court of Appeal were clear: this was not retirement but an attempt to dodge accountability.
The Court’s Verdict: Discipline Cannot Be Outrun
The Court of Appeal confirmed that an employee cannot resign or retire with immediate effect to defeat a lawful disciplinary process. Proper notice is compulsory unless an employer clearly waives it. The Court also emphasized that participation in unprotected protests constitutes misconduct under the Labour Relations Act, giving the employer a legitimate basis to discipline. Having found the retirement invalid, the Court dismissed the appeal with costs.
Why This Matters for Employers?
The ruling provides welcome clarity:
- Employers retain the right to complete disciplinary proceedings, even where an employee purports to exit immediately.
- CBA retirement clauses cannot be used as loopholes to avoid accountability.
- Employers are protected when dealing with unprotected industrial action, so long as due process is followed.
Why This Matters for Employees?
The decision is an important reminder that:
- You cannot terminate employment simply to escape the consequences of misconduct.
- Notice requirements under contracts, CBAs, or the Employment Act must be honoured.
- Participation in unprotected protests carries genuine legal and disciplinary risks.
Key Take-Aways
- No Kenyan law recognizes “instant resignation” or “instant retirement” unless an employer expressly waives notice.
- Employees cannot use termination to avoid ongoing disciplinary proceedings.
- Employers must still observe fairness and natural justice in all disciplinary actions.
- Retirement under a CBA must align with the CBA’s terms and lawful procedures.
Conclusion
The Njuguna case reinforces a straightforward principle: employment relationships must be ended in good faith, not as a tactic to sidestep responsibility. Employers maintain their right to discipline; employees maintain their right to resign. But both rights must be exercised transparently, fairly, and in accordance with the law.
Article by Moffat Atancha