SILAS RUKUNGU KARANJA v TEACHERS SERVICE COMMISSION [2012] KEELRC 34 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Entitlement of a teacher with blindness to retire at 60 under section 15(6) of the Persons with Disabilities Act, 2003
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
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.
Whether absence of an implementation policy excused the respondent's non-compliance
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
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.
Entitlement to pay for the 16 months not worked
The termination was unfair under section 43 of the Employment Act, 2007, and the claimant was awarded 12 months' gross salary, Ksh. 492,738
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.
Discrimination on account of disability
The respondent discriminated against the claimant on the ground of disability and was strictly liable to pay him Ksh. 1,000,000
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.
Strict liability of the respondent as a constitutional Commission for failure to implement the statutory provision
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
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.
Reengagement until age 65 under the circular dated 29.05.2012
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
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.
Legal principles established
#- 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
#- 1.A declaration that the decision to retire the claimant at age 55 amounted to unfair termination of his contract of employment
- 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.The respondent to pay the costs of the case
- 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
- Jurisdiction invoked
- Section 12(3)(viii) of the Industrial Court Act, 2011
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (6)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Peterson Guto Ondieki v Kisii University [2020] KEELRC 1895 (KLR)[2020] KEELRC 1895 (KLR)30 Jan 2020
- Jonathan Patrick Ondieki Nyangau v Nairobi City Water & Sewerage Co Limited [2018] KEELRC 355 (KLR)[2018] KEELRC 355 (KLR)3 Dec 2018
- Jacinta Kibet v West Pokot County [2014] KEELRC 1508 (KLR)[2014] KEELRC 1508 (KLR)31 Oct 2014
- ELIZABETH WASHEKE and 62 Others v AIRTEL NETWORKS (K) LTD & another [2013] KEELRC 572 (KLR)[2013] KEELRC 572 (KLR)24 May 2013
- BEATRICE ACHIENG OSIR V BOARD OF TRUSTEES TELEPOSTA PENSION SCHEME [2012] KEELRC 187 (KLR)[2012] KEELRC 187 (KLR)14 Dec 2012
- BEATRICE ACHIENG OSIR V BOARD OF TRUSTEES TELEPOSTA PENSION SCHEME [2012] KEELRC 187 (KLR)[2012] KEELRC 187 (KLR)14 Dec 2012followed
Cite this brief
#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.