James Makori Omanga v Moi University [2016] KEELRC 1091 (KLR)
The bottom line
#Moi University's notice retiring an accountant at 60 was unlawful because the university's own statutes fixed his retirement age at 65.
What this practically means
#Executive summary
#Key legal issues
#Legality of the notice of retirement
The retirement notice was premature, unlawful and ultra vires the respondent's statutes.
The court held that Statute XXXI (11)(b) of the respondent's statutes, enacted under Legal Notice No. 202 of 2013, expressly provides that administrative staff in grades 11 to 15 retire on the 30th of June next after attaining 65 years. The claimant, an Accountant in that cadre, was therefore not due to retire at 60. The respondent's arguments based on a later Legal Notice and government directives were rejected as fallacious, since any varied position should have been provided for in writing at enactment.
Age at which the claimant attains retirement age
The claimant attains retirement age at 65 years, per Statute XXXI (11)(b).
The court found the applicable retirement provision unambiguous. Section XXXI (11)(b) of the respondent's statutes governs administrative staff in grades 11 to 15 and fixes retirement on the 30th of June following attainment of 65 years. The respondent's contention that the CBA's 65-year retirement age was spent, or that government policy set 60 years, did not displace the express statutory provision governing the claimant's cadre.
Legal principles established
#- Where an employer's statutes provide a specific retirement age for a cadre of staff, a retirement notice inconsistent with that provision is premature and ultra vires; any variation must have been provided for in writing at the time of enactment.
Court orders
#- 1.A declaration that the notice of retirement made by the respondent to the claimant is premature, legally untenable, ultra vires the respondent's terms and conditions of service governing the claimant's employment
- 2.The claimant's retirement shall be on attainment of the age of sixty-five (65) years
- 3.The costs of the claim shall be borne by the respondent
- Jurisdiction invoked
- Employment and labour relations dispute under Article 162(2) of the Constitution (court's jurisdiction as ELRC),Cause No.88 of 2016
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "James Makori Omanga v Moi University [2016] KEELRC 1091 (KLR)", Case Analysis (2016). Cause No. 88 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1091/eng@2016-06-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.