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ELRCAllowedNot stated in the judgment as provided· [2015] KEELRC 251 (KLR)

Ernest Tuiga v Masinde University of Science Technology [2015] KEELRC 251 (KLR)

Employment and Labour Relations Court
13 November 2015
1,779 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The Claimant, a Games Tutor Grade (XII) employed by Masinde Muliro University of Science & Technology in October 2003, applied under Section 12(3)(I) of the Employment and Labour Relations Court Act for an injunction restraining his retirement at age 60 and an order of prohibition barring retirement until he attained 65 years. His Collective Bargaining Agreement fixed his retirement age at 65, and the Respondent had confirmed this in a letter introducing him to Barclays Bank for a loan. By letter dated 5th January 2015, the Respondent notified him that his last working day would be 12th July 2015, his 60th birthday, relying on a circular from the Chief of Staff and Head of Public Service. The Respondent, a public university, countered that it was bound by government policy in Circular No. OP/CAB,2/7A dated 14th February 2014, which its Council had resolved to implement, and that the interim orders were served after retirement took effect. Applying the Giella v Cassman Brown principles, the court found the circular did not amend any employee's retirement age but only discouraged extensions of service, and it expressly excepted officers whose retirement age ranges from 65 to 74 years, among them academic staff in public universities. The Claimant therefore had a prima facie case with high chances of success. Premature retirement would cause irreparable harm by abruptly ending his livelihood, on which he had a legitimate expectation until 65. The court also found service of the interim orders occurred on 10th July 2015, before the retirement date. The application was allowed; the Respondent was restrained from retiring the Claimant at 60 pending determination of the claim, with costs in the cause.

Key legal issues

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01

Whether the Claimant established a prima facie case with probability of success

Holding

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.

Reasoning

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.

p. 4
02

Whether the Claimant would suffer irreparable harm not compensable by damages

Holding

Premature retirement would abruptly end the Claimant's source of livelihood, for which he had a legitimate expectation until 65 years.

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 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. 2.Costs shall be in the cause
Jurisdiction invoked
Section 12(3)(I) of the Employment and Labour Relations Court Act

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, "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.