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ELRCDismissedPetition 93 of 2017· [2019] KEELRC 2271 (KLR)

Jonathan Abraham Kipkirui Chelule v National Police Service Commission & 2 others [2019] KEELRC 2271 (KLR)

Employment and Labour Relations Court of Kenya
25 January 2019
ANAbuodha Jorum Nelson
2,153 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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Winning a reinstatement case doesn't extend Kenya's mandatory retirement age — this officer's pay and pension stop at 55, not 60.

What this practically means

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Executive summary

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The claimant, a gazetted police officer, petitioned the Employment and Labour Relations Court alleging that he was unlawfully retired through a press conference and media announcement on 5th May 2004 without notice. He and other officers successfully challenged the retirement in judicial review proceedings: Ibrahim J ordered reinstatement pending determination, and the substantive application was later determined by Korir J. The claimant, however, was retired with effect from 3rd September 2008 upon attaining the then-mandatory retirement age of 55 years. He sought salary arrears and pension computed to age 60, relying on the 2009 circular extending the retirement age to 60 and on the reinstatement orders. The respondents, through the affidavit of Maxwell Agoro, countered that the retirement was lawful, that the 60-year retirement age applied only from 1st April 2009 after the claimant had already attained 55, and that the 2nd and 3rd respondents were wrongly joined. They also challenged the court's jurisdiction, asserting no constitutional issues were raised. The court agreed with the respondents, holding that the judicial review orders quashed the unprocedural retirement but did not alter the mandatory retirement age; the substantive ruling had lost substratum as the claimant had already mandatorily retired at 55. He was entitled to salary and benefits, including pension, only up to 3rd September 2008. The petition was dismissed with no order as to costs.

Key legal issues

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01

Effect of reinstatement pending judicial review on mandatory retirement age

Holding

The reinstatement did not extend the mandatory retirement age of 55 years then in force; the petitioner was mandatorily retired upon attaining 55 years on 3rd September 2008 and the substantive ruling thereafter lost substratum

Reasoning

The court held that the judicial review application attacked the unprocedural retirement decision, which was quashed, but the quashing did not alter the statutory mandatory retirement age. The court reasoned that any other interpretation would produce absurd results, allowing public servants with pending retirement litigation to extend their retirement age by virtue of the suit. The substantive application by Korir J was decided after the petitioner had already mandatorily retired, so it had lost substratum.

p. 3
02

Entitlement to salary and pension benefits

Holding

The petitioner is entitled to salary and benefits including pension only up to the mandatory retirement age of 55 years obtaining as at 3rd September 2008, not to age 60

Reasoning

Although the unprocedural removal was set aside and the officer deemed still in service pending the judicial review, his service for computation purposes could not extend beyond the mandatory retirement age applicable at the time. The 2009 circular extending retirement to 60 years took effect from 1st April 2009, by which time the petitioner had already attained 55 years and was therefore not a beneficiary of the extension.

p. 3

Legal principles established

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  • A reinstatement order following a successful judicial review challenge to a retirement decision does not alter the mandatory retirement age applicable to the public servant

Court orders

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  1. 1.The petition is dismissed
  2. 2.No order as to costs

Authorities

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Legislation

  • Constitution of KenyaBill of Rights provisions (not specifically invoked by the petitioner)
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013Rule 4

Cases cited (4)

  • Annarita Karimi Njeru Vs Rep
    1979 KLR 154
  • James Muchene Ngei Vs Republic
    [2008] eKLR, H.C at Nairobi Misc Application No 562 of 2008
  • Cyprian Kubai Vs Stanley Kaiyongi Mwenda
    2002 eKLR, H.C at Nairobi Misc App No. 612 of 2002
  • Julius Odol Noberts & Others Vs Public Service Commission & 2 Others
    JR Misc Cause No. 1365 of 2004
Jurisdiction invoked
Constitutional petition alleging violation of fundamental rights and freedoms; jurisdiction challenged by respondents as conferred by the Constitution and the statute creating the Employment and Labour Relations Court

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, "Jonathan Abraham Kipkirui Chelule v National Police Service Commission & 2 others [2019] KEELRC 2271 (KLR)", Case Analysis (2019). Petition 93 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2271/eng@2019-01-25

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.