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ELRCDismissedCause No 16 of 2019· [2021] KEELRC 1829 (KLR)

Hafidhi Muhsin v Teachers Service Commission [2021] KEELRC 1829 (KLR)

Employment and Labour Relations Court
23 April 2021
2,991 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A teacher who retired on time lost his case because he never gave his employer a certified birth certificate before retiring, even though the certificate later proved his true birthdate.

What this practically means

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Executive summary

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The claimant, a senior head teacher employed by the respondent on 20.06.1980, sued alleging unlawful premature retirement effective 01.07.2018 before attaining the mandatory retirement age of 60 years on 09.09.1958 as per his birth certificate, and claimed terminal dues of Kshs. 1,374,869.20 comprising pension shortfall, salary arrears, house allowance and commuter allowance. The respondent maintained the claimant was born on 01.07.1958 and was properly retired, having been fully paid. The court framed three issues: the claimant's date of birth, the legality of the retirement, and entitlement to remedies. On the first issue, the court found the statutory certificate of birth issued 20.07.1982 established 09.09.1958 as the date of birth. However, on the second issue, the court held that under regulation 11(2) of the respondent's Code of Regulations, incorporated into the contract, the claimant was required to submit a certified birth certificate issued on or before 15.11.1982 to vary his declared date of birth, and he failed to do so before retirement despite notice of looming retirement dated 16.01.2017. Under the prevailing practice and the circular of 01.07.2014, a teacher not declaring an exact birth date is presumed born on 1st July, so retirement effective 01.07.2018 was proper. The certificate was first submitted with the appeal letter of 10.08.2018, after retirement. The Ex-parte Erastus M. Githinji decision was distinguished as involving a statutory duty on the employer to seek clarification, absent here. The internal memo supporting the claimant was of doubtful probative value as an uncertified public document inconsistent with the exhibited certificate. All claimed dues failed as the claimant ceased working after 01.07.2018. The suit was dismissed; because the respondent failed to reply to the claimant's letter of 05.03.2018, each party was ordered to bear own costs.

Key legal issues

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01

Claimant's date of birth

Holding

The claimant's date of birth was 09.09.1958 per the statutory certificate of birth

Reasoning

The certificate of birth issued 20.07.1982 under the Births and Deaths Registration Act, with the claimant's father as informant, states the claimant was born 09.09.1958; the court follows its own precedent presuming such certificates to be true evidence of the facts declared.

p. 2
02

Whether retirement effective 01.07.2018 was unfair or unlawful

Holding

The retirement was neither unfair nor unlawful

Reasoning

Regulation 11(2) required a certified birth certificate issued on or before 15.11.1982 to vary the date of birth declared in the employment application. The claimant was notified of looming retirement by the notice dated 16.01.2017 but never presented a certified certificate before retirement. Under the prevailing practice and the circular of 01.07.2014, an employee not declaring an exact birth date is presumed born on 1st July, making the retirement date 01.07.2018. The certificate was submitted for the first time with the appeal letter of 10.08.2018, after retirement.

p. 3
03

Distinguishing the Ex-parte Erastus M. Githinji decision

Holding

That case was distinguishable because there the employer had a statutory duty to seek clarification of a declaration under the Public Officer Ethics Act, which never arose here

Reasoning

In Githinji the applicant had declared his date of birth under the Public Officer Ethics Act, vesting a duty on the respondent to seek clarification. No equivalent statutory declaration or duty arose in the instant case, since the claimant never raised his birth certificate with the employer before retirement.

p. 3
04

Evidential value of the internal memo of 19.09.2018/10.08.2018

Holding

The memo's probative value is open to doubt as it was an uncertified public document and conflicted with the exhibited birth certificate's date

Reasoning

The memo stated the birth certificate was dated 03.04.1978, whereas the exhibited certificate shows it was given 20.07.1982. The claimant did not testify on how he obtained the memo, and under sections 79 and 80 of the Evidence Act it ought to have been certified as a true copy.

p. 3

Legal principles established

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  • A statutory certificate of birth issued under the Births and Deaths Registration Act is presumed true evidence of the dates and facts it declares
  • An employee who fails to provide a certified birth certificate as required by the applicable regulation before retirement cannot later rely on that certificate to challenge the retirement date fixed under the employer's prevailing practice and circular
  • An uncertified public document is of doubtful evidential value under sections 79 and 80 of the Evidence Act

Court orders

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  1. 1.Judgment entered for the respondent against the claimant for dismissal of the suit
  2. 2.Each party to bear own costs of the suit

Authorities

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Legislation

  • Births and Deaths Registration ActNot specified
  • Evidence Act Cap. 80 Laws of Kenyasections 79 and 80
  • Public Officer Ethics ActNot specified
  • Respondent's Code of Regulationsregulation 11(2)

Cases cited (1)

  • Republic -Versus- Judicial Service Commission & 2 Others Ex-parte Erastus M. Githinji
    [2019] eKLR
Jurisdiction invoked
Employment and labour relations jurisdiction over the claimant's memorandum of claim for unlawful retirement and terminal dues

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Hafidhi Muhsin v Teachers Service Commission [2021] KEELRC 1829 (KLR)", Case Analysis (2021). Cause No 16 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1829/eng@2021-04-23

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