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ELRCPartially AllowedPetition No. 319 of 2011· [2013] KEELRC 113 (KLR)

Mary Wangui Gakunju v City Council Of Nairobi [2013] KEELRC 113 (KLR)

Industrial Court of Kenya
6 September 2013
MNMathews N. Nduma
1,068 words in judgment
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The bottom line

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Kenya's Industrial Court ruled that employees with disabilities must be allowed to retire at 60, not 55, and awarded compensation for forced early retirement.

What this practically means

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Executive summary

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The Petitioner, a person with disability registered with the National Council for Persons with Disabilities, served the Respondent, City Council of Nairobi, for 29 years as an assistant at Makadara Health Centre. By letter dated 2nd June 2008 she was issued six months' notice of retirement at age 55 pursuant to the Public Service Commission (Local Authority Officers) Regulations 2007. She requested to retire at 60, invoking Section 15(6) of the Persons with Disabilities Act Cap 14, which sets 60 years as the minimum retirement age for persons with disability, but was retired in December 2008 at 55. The petition, filed in the High Court in 2011 and transferred to the Industrial Court on 3rd October 2012, was undefended; the Respondent filed no response and the facts stood uncontroverted. The Attorney General appeared as a friend of the court, submitting that the retirement followed the public service policy of retiring officers at 55. The court held that Section 15(6) is mandatory and in force at the material time, that subsidiary regulations could not override the express statutory provision, and that affirmative action for persons with disabilities is a recognised and lawful practice. The court found the retirement unlawful but declined reinstatement given the roughly five years elapsed, and instead awarded the Petitioner lost remuneration of Kshs.907,200 for the period 1st January 2009 to 31st December 2013, less taxation, plus costs of the suit.

Key legal issues

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01

Whether a public officer with disability could lawfully be retired at 55 under the Public Service Commission (Local Authority Officers) Regulations 2007 despite Section 15(6) of the Persons with Disabilities Act fixing a minimum retirement age of 60

Holding

The retirement at 55 was unlawful; the Respondent was bound by the statutory minimum of 60 years, which the subordinate regulations could not override

Reasoning

Section 15(6) of the Persons with Disabilities Act was in force when the Petitioner was retired in December 2008 and is couched in mandatory terms. The Respondent did not file a response and the pleaded facts were uncontroverted. The Attorney General argued the retirement followed the applicable public service policy, but the court held subsidiary regulations could not override an express statute, and that affirmative action favouring persons with disabilities is lawful and recognised, not discrimination against other public officers.

p. 2
02

What remedy flows from the unlawful retirement

Holding

Compensation in the form of lost remuneration for the period 1st January 2009 to 31st December 2013 was awarded in lieu of reinstatement

Reasoning

Section 12(3) of the Industrial Court Act empowers the court to grant declaratory orders, compensation, reinstatement within three years of dismissal, or other appropriate relief. Given that about five years had elapsed since the unlawful retirement, reinstatement was inappropriate. The court therefore awarded the Petitioner her lost salary and allowances, computed at her gross monthly earnings of Kshs.26,400 for the four-year period, subject to taxation by the Kenya Revenue Authority.

p. 3

Legal principles established

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  • Subsidiary regulations prescribing a retirement age cannot override express provisions of a statute
  • Section 15(6) of the Persons with Disabilities Act imposes a mandatory minimum retirement age of 60 years for persons with disability
  • Positive discrimination by way of affirmative action for persons disadvantaged by disability is a recognised practice

Court orders

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  1. 1.The Respondent is directed to pay to the Petitioner all lost remuneration including salaries and allowances for the period 1st January, 2009 to 31st December, 2013 in the sum of Kshs.907,200 (26,400 x 12 x 4) less taxation to the Kenya Revenue Authority
  2. 2.The Respondent is to pay the costs of this suit

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 19(3)(b), 21(3), 22(1), 23, 27(4) and (5), 54, 165(3)(b)
  • Persons with Disability Act, Cap 14 of 2003Section 15(6)
  • Public Service Commission (Local Authority Officers) Regulations 2007retirement at age 55
  • Industrial Court Act, 2011Section 12(3)
Jurisdiction invoked
Industrial Court Act 2011, Section 12(3), following transfer from the High Court on 3rd October 2012; petition brought under Articles 19(3)(b), 21(3), 22(1), 23, 27(4) and (5), 54 and 165(3)(b) of the Constitution

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Mary Wangui Gakunju v City Council Of Nairobi [2013] KEELRC 113 (KLR)", Case Analysis (2013). Petition No. 319 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/113/eng@2013-09-06

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