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ELRCAllowedCause No. 88 of 2016· [2016] KEELRC 1091 (KLR)

James Makori Omanga v Moi University [2016] KEELRC 1091 (KLR)

Employment & Labour Relations Court of Kenya
17 June 2016
1,642 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The claimant, employed by the respondent university since 21st February 1985 and promoted to Accountant Grade No. 12 on 6th June 2014, was served with a retirement notice dated 1st July 2015 requiring him to retire on 30th June 2016. He moved to court by Statement of Claim and Notice of Motion dated 28th April 2016 seeking to restrain his retirement, contending the notice was premature and ultra vires the respondent's terms and conditions of service. The inter partes application was, by consent, converted to a full hearing of the main suit. Four issues were framed: the legality of the retirement notice, the claimant's retirement age, entitlement to relief, and costs. The court found that Statute XXXI (11)(b) of the respondent's statutes under the Moi University Charter (Legal Notice No. 202 of 2013) fixes retirement for administrative staff in grades 11 to 15 at 65 years, and that the notice was therefore premature, unlawful and ultra vires. The respondent's reliance on a later Legal Notice No. 7, government directives and the argument that the CBA's retirement age was spent was rejected; any variation should have been provided in writing at enactment. Judgment was delivered on 17th June 2016 by D.K.N. Marete, J. The claim was allowed: a declaration issued that the retirement notice was premature, untenable and ultra vires; the claimant's retirement was fixed at 65 years; and costs were awarded to the claimant.

Key legal issues

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01

Legality of the notice of retirement

Holding

The retirement notice was premature, unlawful and ultra vires the respondent's statutes.

Reasoning

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.

p. 4
02

Age at which the claimant attains retirement age

Holding

The claimant attains retirement age at 65 years, per Statute XXXI (11)(b).

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 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. 2.The claimant's retirement shall be on attainment of the age of sixty-five (65) years
  3. 3.The costs of the claim shall be borne by the respondent

Authorities

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Legislation

  • Moi University CharterLegal Notice No. 202 of 2013, Section XXVI(1)(f), S. 28
  • Moi University StatutesStatute XXXI (11)(a), (b), (c) and 12
  • Legal Notice No. 7retirement age
  • Collective Bargaining Agreement (respondent's CBA)retirement age for period 1st July 2012 to 30th June 2013
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

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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, "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.