Ernest Tuiga v Masinde University of Science Technology [2015] KEELRC 251 (KLR)
The bottom line
#A Kenyan court stopped Masinde Muliro University from retiring an employee at 60 because his collective agreement set retirement at 65.
What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant established a prima facie case with probability of success
The Claimant's CBA fixed his retirement age at 65; the Government circular did not amend that retirement age and expressly excepted officers whose retirement age ranges from 65 to 74 years, so it could not apply to him.
The court noted it was not in doubt that the CBA set the Claimant's retirement age at 65 and that he had not attained it. Reading the circular, the court found it referred to officers whose retirement age had been reviewed from 55 to 60, while recognising at paragraph 3 that officers with a retirement age of 65 to 74 years were not affected. Since the circular merely discouraged extensions of service and the Claimant had neither attained retirement age nor requested an extension, it did not apply to him, giving him a prima facie case with high chances of success.
Whether the Claimant would suffer irreparable harm not compensable by damages
Premature retirement would abruptly end the Claimant's source of livelihood, for which he had a legitimate expectation until 65 years.
The court found that retiring the Claimant before attaining his mandatory retirement age of 65 would bring to an abrupt end his source of livelihood, which he had a legitimate expectation of enjoying until 65, a harm not adequately compensable in damages. It also found, contrary to the Respondent's contention, that the Respondent was served with the court orders on 10th July 2015, before the retirement date of 12th July 2015, so the interim orders were not overtaken by events.
Legal principles established
#- Where terms in a collective agreement are more favourable to an employee than statutory minimums, the favourable terms apply
- A government circular that does not amend an employee's retirement age, and which carves out officers with a retirement age of 65 to 74 years, cannot be applied to retire such an officer at 60
Court orders
#- 1.The Respondent, its servants and/or agents are restrained from retiring or threatening to retire the Claimant at the age of 60 years pending the hearing and determination of the claim
- 2.Costs shall be in the cause
- Jurisdiction invoked
- Section 12(3)(I) of the Employment and Labour Relations Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ernest Tuiga v Masinde University of Science Technology [2015] KEELRC 251 (KLR)", Case Analysis (2015). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/251/eng@2015-11-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.