Shem Kisanya Majani v County Government of Nairobi & another [2020] KEELRC 620 (KLR)
The bottom line
#A Kenyan court dismissed a former city worker's Sh4.8 million claim because the 60-year retirement rule didn't apply to him and he filed too late.
What this practically means
#Executive summary
#Key legal issues
#Whether the claimant, reinstated by the Public Service Commission but deemed retired on attaining 55 years on 31st December 2007, could benefit from the circular of 20th March 2009 raising the retirement age to 60 years
He could not; the circular benefited only employees who had not attained 55 years as at 5th March 2009, so his retirement at 55 was valid
The court examined the circular of 20th March 2009 and found it expressly confined the enhanced retirement age of 60 years to public servants who had not attained the mandatory age of 55 by 5th March 2009. The claimant, born in 1952 as evidenced by his own testimony, identity documents and payslips, attained 55 years on 31st December 2007, before the circular. His deemed retirement date was therefore validly fixed at 31st December 2007 notwithstanding the PSC reinstatement.
Whether the claim, filed on 19th February 2015, was statute-barred under section 90 of the Employment Act and section 4 of the Limitation of Actions Act
Yes; the cause of action arose on 26th August 2009 when the reinstatement and retirement letter was issued, and the three-year limitation period expired long before filing
The court held the cause of action crystallised on 26th August 2009 when the letter of reinstatement and retirement was issued, with the PSC appeal on retirement age rejected and communicated by letter dated 26th October 2012. The claim filed on 19th February 2015 far exceeded the three-year period under section 90 of the Employment Act. Neither pending internal appeals, alleged respondent-induced delay, nor the notion of a continuing breach stopped time from running.
Whether the dismissal following criminal conviction was lawful
The dismissal was set aside by the Public Service Commission on appeal, so the question resolved into whether the subsequent deemed retirement at 55 was valid, which it was
The claimant was removed from the payroll in August 2003 after pleading guilty to assault causing actual bodily harm and being sentenced to three years' imprisonment. He was summarily dismissed in April 2005, but the Public Service Commission set aside that dismissal and ordered reinstatement, the period away being treated as unpaid leave. Upon reinstatement the 1st respondent retired him because he had already attained the mandatory retirement age of 55, which the court found lawful.
The 2nd respondent's preliminary objection on misjoinder of the Attorney General in a purely county government labour dispute
Not conclusively determined in this judgment; the 2nd respondent's preliminary objection was not determined in the ruling of 1st July 2016, and the court relied on its written submissions; the claim failed on the merits and limitation regardless
The judgment records that the ruling of 1st July 2016 inadvertently considered only the 1st respondent's preliminary objection on limitation. Counsel for the 2nd respondent indicated reliance on written submissions on the misjoinder objection. The court did not make a conclusive finding on the joinder of the Attorney General, instead disposing of the claim on the merits and limitation, and dismissed it with no orders as to costs.
Legal principles established
#- A public servant who had already attained the mandatory retirement age of 55 years before the circular raising retirement age to 60 took effect on 1st April 2009 is not eligible for the extended retirement age
- Time does not stop running on the commencement of reconciliation or other alternative dispute resolution mechanisms; the limitation period under section 90 of the Employment Act continues to run during out-of-court negotiations or internal appeals
- There are no exceptions to the three-year limitation period in section 90 of the Employment Act save for continuing injury, where proceedings must be brought within twelve months of cessation
Court orders
#- 1.The claimant's claim is dismissed
- 2.No orders for costs (each party to bear own costs)
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Act (claim for terminal benefits and unfair termination); respondents' preliminary objections raised jurisdictional challenges based on Articles 6(1), (2), 152(2) and 165(5) of the Constitution and Section 5 of the Attorney General Act 2012
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Shem Kisanya Majani v County Government of Nairobi & another [2020] KEELRC 620 (KLR)", Case Analysis (2020). Cause No 201 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/620/eng@2020-07-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.