27th October 2025
Our very own Partner, Noella Lubano and Senior Associate, Paul Kamara successfully represented Telkom Kenya Limited before the Supreme Court of Kenya in Petition No. E009 of 2025: Francis Waithaka Ngokonyo & 2 Others v Telkom Kenya Limited.
In a landmark decision, the Supreme Court affirmed that “permanent and pensionable” status does not confer an absolute or immutable right to employment so as to entitle employees to anticipatory salaries and allowances following early retirement.
The Appellants, former employees of Telkom Kenya Limited, challenged their early retirement “in the public interest”, arguing that their permanent and pensionable status created a legitimate expectation of continued employment until the mandatory retirement age. They contended that their exit violated their constitutional right to fair labour practices and relied on earlier appellate decisions where courts had awarded anticipatory salaries for premature retirement.
The Supreme Court agreed with our submissions and clarified that while permanent and pensionable status offers employment stability, it cannot override clear contractual terms or statutory frameworks, nor can it sustain claims for future salaries and allowances up to retirement age.
Key takeaways from the decision include:
- The Supreme Court’s jurisdiction under Article 163(4)(b) of the Constitution is strictly confined to issues certified as matters of general public importance. Any grounds falling outside the certification are to be disregarded.
- Prior decisions awarding anticipatory salaries or damages not contemplated in law or contract is bad law, and the importation of principles of natural justice in such circumstances is ill-advised.
- Employees bear a duty to mitigate loss following termination by taking reasonable steps to secure alternative employment.
- Permanent and pensionable status does not amount to a guarantee of employment for life or until retirement age.
- Damages for unlawful retirement must be limited to contractual and statutory entitlements and cannot extend to anticipated earnings for the unexpired period to retirement.
This decision provides much-needed clarity for employers and employees alike and strengthens legal certainty in the management of human capital.
We are proud to have acted for Telkom Kenya Limited in addressing issues of significant public and commercial importance, reinforcing our commitment to delivering practical, strategic legal solutions while contributing to the development of Kenyan labour jurisprudence.
Read the full Judgment here
About Oraro & Company Advocates
Oraro & Company Advocates is a full-service market-leading African law firm established in 1977 with a strong focus on dispute resolution and corporate & commercial law. With a dedicated team of partners and associates, the firm has been consistently ranked by leading legal directories such as Chambers Global, IFLR1000 and Legal 500 as a top-tier firm in Kenya.
Oraro & Company Advocates prides itself in its deeply rooted client relationships by providing quality legal services through its partner-led approach, drawing from local knowledge and global perspectives.
The firm is a full Affiliate Member of AB & David Africa, a Pan-African business law network committed to ensuring that businesses and projects succeed in Africa, by helping clients minimize the risks associated with doing business in the continent. This enables the firm to offer cross-jurisdictional legal advice in a seamless manner, while maintaining the highest professional standards.
