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ELRCPartially AllowedNot stated in the judgment (memorandum of claim filed 4.04.2012)· [2012] KEELRC 34 (KLR)

SILAS RUKUNGU KARANJA v TEACHERS SERVICE COMMISSION [2012] KEELRC 34 (KLR)

Industrial Court of Kenya
2 November 2012
6,820 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Industrial Court ruled that employees with disabilities must retire at 60, not 55, and employers cannot delay complying with this law.

What this practically means

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Executive summary

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The claimant, a P1 teacher employed by the Teachers Service Commission in May 1975, lost his sight in 1995 and was transferred to Thika School for the Blind. The respondent retired him on compulsory retirement at age 55 with effect from 31 August 2005 under the Pensions Act, despite the Persons with Disabilities Act, 2003 providing that the minimum retirement age for persons with disabilities is 60 years. He claimed salary for the sixteen months he was out of employment (September 2005 to December 2006), general relief, costs and interest. The respondent engaged him on successive one-year contracts from 1 January 2007 to 31 December 2008, later extended to 1 September 2010, pleading that absence of implementation policy from the Directorate of Personnel Management justified its position and that no salary was due for work not done. The court found the claimant entitled to the benefit of section 15(6), that the policy excuse was misconceived and pretentious, and that his retirement at 55 was unfair termination under section 43 of the Employment Act, 2007. It awarded 12 months' gross salary of Ksh. 492,738, a further Ksh. 1,000,000 for the respondent's strict liability as a constitutional Commission breaching its statutory obligation, and Ksh. 1,000,000 for discrimination on the ground of disability. It also ordered the claimant's reengagement at Thika School for the Blind until he attains 65 years on 1 September 2015, applying the circular of 29 May 2012. Judgment was entered for Ksh. 2,492,738 plus interest, with costs to the claimant.

Key legal issues

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01

Entitlement of a teacher with blindness to retire at 60 under section 15(6) of the Persons with Disabilities Act, 2003

Holding

The claimant attained 55 years long after the Act came into operation and was entitled to benefit from the provision fixing minimum retirement age for persons with disabilities at 60 years

Reasoning

The Act came into operation in 2003 and the claimant turned 55 on 1.09.2005. The provision is universal, applying to all employers and employment categories. The claimant's blindness was known to the respondent since 1995, so his entitlement under the statute was clear and the respondent was obliged to implement it.

p. 9
02

Whether absence of an implementation policy excused the respondent's non-compliance

Holding

The respondent flagrantly breached the Act without good reason; the policy argument was misconceived and pretentious, since even when DPM advice was given the respondent failed to act on it

Reasoning

The statutory provision was clear and required no subsidiary policy to take effect. The respondent knew of the claimant's disability since 1995, did not forward his file to the DPM as requested, and did not refer the matter to the Public Service Commission as advised. Its witness contradicted himself, claiming both consultation on policy and discretion.

p. 9
03

Entitlement to pay for the 16 months not worked

Holding

The termination was unfair under section 43 of the Employment Act, 2007, and the claimant was awarded 12 months' gross salary, Ksh. 492,738

Reasoning

The claimant's non-work was attributable to the respondent's invalid retirement at 55 rather than 60. The respondent's reliance on section 18(1) of the Employment Act (payment proportionate to work done) was rejected because the failure to work resulted from the respondent's own unlawful act.

p. 9
04

Discrimination on account of disability

Holding

The respondent discriminated against the claimant on the ground of disability and was strictly liable to pay him Ksh. 1,000,000

Reasoning

The discriminatory conduct included an officer's derogatory statement, failure to act on the claimant's case while the Public Service Commission implemented the provision for its officers case by case, and imposition of one-year periodic contracts with inferior terms instead of permanent and pensionable terms to age 60. The respondent failed to discharge the burden under section 5(6) of the Employment Act.

p. 11
05

Strict liability of the respondent as a constitutional Commission for failure to implement the statutory provision

Holding

The respondent, established under Article 237 of the Constitution and bound by Articles 10, 232 and 249(2), was strictly liable for breach of its obligation to implement the law, attracting a further Ksh. 1,000,000

Reasoning

The respondent's unashamed failure to implement section 15(6) constituted serious misconduct undermining its constitutional obligations. The court found no reasonable or lawful ground for the failure and held the respondent strictly liable to pay Ksh. 1,000,000 for the breach of its strict statutory obligation.

p. 10
06

Reengagement until age 65 under the circular dated 29.05.2012

Holding

Although the circular took effect after the claimant had left service, the court ordered reengagement at Thika School for the Blind until at least 1 September 2015 when he would attain 65 years

Reasoning

The circular effectuated the constitutional duty under Article 54(2) to progressively employ at least five per cent of teachers with disabilities. The belated release of the circular should not deny the claimant constitutionally guaranteed protection, and the respondent would suffer no practical difficulty in reengaging him.

p. 11

Legal principles established

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  • Section 15(6) of the Persons with Disabilities Act, 2003 applies to all employers and employees in public service, private sector and all other categories of employment, fixing the minimum retirement age for persons with disabilities at 60 years
  • A public employer cannot defer compliance with an express statutory provision by pleading absence of implementation policy
  • An employee whose employment was not terminated due to his own fault is entitled to compensation notwithstanding that no work was performed
  • An employee injured by discrimination on the ground of disability is entitled to compensation, and the employer bears the burden of proving no discrimination

Court orders

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  1. 1.A declaration that the decision to retire the claimant at age 55 amounted to unfair termination of his contract of employment
  2. 2.The respondent to pay the claimant Ksh. 2,492,738.00 plus interest at court rates from the date of judgment until full payment
  3. 3.The respondent to pay the costs of the case
  4. 4.The respondent to reengage the claimant as a teacher at Thika School for the Blind with effect from 15th November 2012 at his last grade with applicable terms of service, terminal benefits due, until at least 1st September 2015 when he attains 65 years, unless lawfully terminated earlier

Authorities

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Legislation

  • Persons with Disabilities Act, 2003section 15(6); section 2
  • Employment Act, 2007sections 5(1), 5(3), 5(6), 18(1), 43
  • Industrial Court Act, 2011section 12(3)(viii)
  • Education ActCap 211
  • Teachers Service Commission ActCap 212
  • Pensions ActCap 189
  • Constitution of Kenya, 2010Articles 10, 27, 54, 54(2), 232, 237, 249(2)
Jurisdiction invoked
Section 12(3)(viii) of the Industrial Court Act, 2011

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (6)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "SILAS RUKUNGU KARANJA v TEACHERS SERVICE COMMISSION [2012] KEELRC 34 (KLR)", Case Analysis (2012). Not stated in the judgment (memorandum of claim filed 4.04.2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2012/34/eng@2012-11-02

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.