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ELRCAllowedNot stated in judgment· [2013] KEELRC 382 (KLR)

RICHARD NYAEGA ONDIEKI & 4 OTHERS V WAKENYA PAMOJA SAVINGS & CREDIT SOCIETY LIMITED [2013] KEELRC 382 (KLR)

Industrial Court of Kenya
16 April 2013
HWHellen Wasilwa
1,769 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 co-operative society employees must retire at 60, not 55, and ordered five unfairly retired staff reinstated with full pay.

What this practically means

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Executive summary

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Five claimants, formerly employed by Wakenya Pamoja Savings & Credit Society Ltd as branch managers, an Ag. CEO and a Public Relations Officer, filed a Statement of Claim on 31/1/2013 challenging their forced retirement at age 55. They relied on a letter dated 30th November 2009 from the Commissioner for Co-operative Development and a circular of 24th March 2010 conveying the Government policy enhancing the mandatory retirement age for public officers from 55 to 60 years, arguing that the co-operative movement was covered by that policy. They contended that retirement notices dated 5th November 2012, issued without a hearing shortly before their 55th birthdays, were unlawful, discriminatory and calculated to create space for recruitment of the respondents' officers' relatives. The respondent's statement of reply was filed out of time and without leave and was expunged, and the matter proceeded by formal proof. The court framed two issues: whether retirement before 60 was justified, and whether the remedies sought were available. Relying on the Public Officer Ethics Act definition of a public officer as adopted in the Commissioner's circular, the court held that co-operative movement staff were covered by the enhanced retirement age and that the respondents' move was not justified. Reinstatement was held to be a remedy available under S.12(vii) of the Industrial Court Act, 2011 and S.49(3)(a) of the Employment Act, 2007. The court ordered reinstatement of all five claimants with immediate effect with no loss of seniority or increments, declared the retirement notices null and void, and directed payment of pending and continuing salaries until each claimant attains retirement age, subject to lawful termination or voluntary retirement.

Key legal issues

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01

Whether retirement at 55 was justified given the enhanced retirement age of 60 for co-operative movement staff

Holding

Not justified; the Commissioner's circular extended the retirement age to 60 for co-operative society employees, superseding the prior 55-year limit.

Reasoning

The court examined appointment letters and identity cards showing the claimants' dates of birth, then considered the letter from the Commissioner for Co-operative Development and the circular from the Office of the President reviewing public servants' retirement age from 55 to 60. The circular, relying on the Public Officer Ethics Act definition of a public officer, expressly covered Co-operative Movement staff, so the respondents could not lawfully retire the claimants at 55.

p. 4
02

Whether reinstatement and payment of outstanding salaries could be awarded

Holding

Yes; reinstatement is a statutory remedy under S.12(vii) of the Industrial Court Act, 2011 and S.49(3)(a) of the Employment Act, 2007, and was granted with immediate effect.

Reasoning

Having found no valid reason for the premature retirement, the court held that the remedy sought was one envisaged under Kenyan law. It ordered reinstatement with no loss of seniority or increments, declared the retirement notices null and void, and directed payment of pending and continuing salaries until the claimants attain retirement age, subject to lawful termination or voluntary retirement.

p. 4

Legal principles established

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  • Co-operative Movement employees fall within the public officers' retirement age policy reviewed from 55 to 60 years, per the Public Officer Ethics Act definition adopted by the Commissioner for Co-operative Development.
  • Retirement of the claimants before 60 years was unjustified and the reinstatement remedy is available under S.12(vii) of the Industrial Court Act and S.49(3)(a) of the Employment Act.

Court orders

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  1. 1.All claimants reinstated to their employment with immediate effect with no loss to seniority or increments
  2. 2.The notice of retirement declared null and void
  3. 3.Claimants to be paid any pending salaries/allowances since the time of the notice and continue to be paid as per their employment contract until they attain their retirement age, unless dismissed/terminated for any other lawful reason or unless they choose to voluntarily retire

Authorities

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Legislation

  • Industrial Court (Procedure) Rules 2010Rule 13(1)
  • Co-operative Societies Act, Cap 490 LOKSection 3(3)
  • Public Officer Ethics Act 2003Section 2
  • Industrial Court Act 2011Section 12(vii)
  • Employment Act 2007Section 49(3)(a)
Jurisdiction invoked
Industrial Court Act, 2011 (S.12 remedies); Industrial Court (Procedure) Rules 2010

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, "RICHARD NYAEGA ONDIEKI & 4 OTHERS V WAKENYA PAMOJA SAVINGS & CREDIT SOCIETY LIMITED [2013] KEELRC 382 (KLR)", Case Analysis (2013). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/382/eng@2013-04-16

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