Michael Kagoma Maina v Kenya Police Service & 2 others [2013] KEELRC 965 (KLR)
The bottom line
#Kenya's Employment Court ruled a police officer unfairly forced to retire at 55 must be treated as serving to 60, winning over Kshs.3.8 million.
What this practically means
#Executive summary
#Key legal issues
#Whether the verbal interdiction without delivery of the interdiction letter was procedural
The failure to deliver the interdiction letter was a procedural irregularity that did not render the interdiction null and void, as the signal evidenced the decision and half pay was imposed
Both parties accepted an interdiction was imposed. The claimant was entitled to receive the letter over and above verbal communication, but the internal memorandum evidenced the decision and half salary was paid as prescribed by regulations. The irregularity caused no substantial injustice and did not touch the Commissioner of Police's jurisdiction to interdict, so the decision stands.
Whether the claimant was entitled to remain in service up to 60 years under the 2009 retirement age circular
Yes; the claimant was on interdiction, still in service, and entitled to benefit from the circular raising retirement age from 55 to 60 years effective 1 April 2009
While on interdiction the claimant remained in the full service of the respondents and had not been terminated. Since he had not been convicted and the interdiction was to facilitate investigations, he stood to benefit as a diligent officer from the circular OP.CBA.2/7A of 20.03.2009 raising the mandatory retirement age to 60 years with effect from 1 April 2009.
Whether retirement at 55 years was unfair termination
Yes; the reason (attaining 55 years) was invalid in view of the circular and due process was not accorded
The respondents were bound to await the outcome of the criminal case that occasioned the interdiction before determining the employment relationship. The letter of retirement dated 18.03.2011 was retrospective and issued when the Constitution of 2010 was in force, entitling the claimant to fair administrative action under Article 47. The reason was invalid and process unfair, so the termination was unfair.
Entitlement to remedies
Salary for 5 years to age 60 (Kshs.3,070,200), general damages of Kshs.614,040 for unfair termination, and declarations granted; malicious prosecution claim refused
The claimant was entitled to salary for the period he would have worked to age 60 since he was precluded from alternative engagement while on interdiction under the regulations and section 44 of the Police Act. The damages prayer for unfair termination was found adequate to meet the ends of justice. The malicious prosecution claim failed as not established and pending elsewhere.
Legal principles established
#- A procedural irregularity in administrative decision-making that does not occasion substantial injustice or impair the decision-maker's jurisdiction does not render the decision null and void.
- Where an employer makes a criminal complaint instead of concluding a disciplinary case, the employer is generally bound by the outcome of the criminal process.
- In the absence of a constitutional or statutory mandatory retirement age, mandatory retirement age is a contractual term variable by the employer in consultation with the employee under section 10(5) of the Employment Act, 2007.
- Termination by way of retirement requires an employer decision; failing which the employee may treat the employment relationship as continuing.
- An employee on interdiction who is exculpated is entitled to pay for the period of interdiction, having a legitimate expectation to return to work.
Court orders
#- 1.A declaration that the retrospective termination of the claimant's employment by way of retirement on account of attaining the age of 55 years as conveyed in the letter dated 18.03.2011 was unfair and the claimant was entitled to retire upon attaining 60 years of age effective 27.9.2012 with due pension benefits.
- 2.A declaration that the abrupt severance of the claimant's half salary with effect from 27.9.2007 which he used to earn while in the police service and on interdiction was illegal and unlawful.
- 3.The respondents to pay the claimant Kshs.3,884,240.00 by 1.3.2014, failing interest to be payable at court rates from the date of the judgment till full payment.
- 4.Costs of the suit fixed at Kshs.200,000.00 payable to the claimant.
- Jurisdiction invoked
- Jurisdiction as the Industrial Court over employment and labour relations claims; no specific constitutional or statutory provision invoked in the judgment for jurisdiction
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Michael Kagoma Maina v Kenya Police Service & 2 others [2013] KEELRC 965 (KLR)", Case Analysis (2013). Cause No 49 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/965/eng@2013-12-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.