Hafidhi Muhsin v Teachers Service Commission [2021] KEELRC 1829 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Claimant's date of birth
The claimant's date of birth was 09.09.1958 per the statutory certificate of birth
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.
Whether retirement effective 01.07.2018 was unfair or unlawful
The retirement was neither unfair nor unlawful
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.
Distinguishing the Ex-parte Erastus M. Githinji decision
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
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.
Evidential value of the internal memo of 19.09.2018/10.08.2018
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
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.
Legal principles established
#- 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
#- 1.Judgment entered for the respondent against the claimant for dismissal of the suit
- 2.Each party to bear own costs of the suit
- Jurisdiction invoked
- Employment and labour relations jurisdiction over the claimant's memorandum of claim for unlawful retirement and terminal dues
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Mugo Hsc v Mugo & 2 others (Employment and Labour Relations Cause E001 of 2024) [2024] KEELRC 1273 (KLR)[2024] KEELRC 1273 (KLR)23 May 2024
- Mugo Hsc v Mugo & 2 others (Employment and Labour Relations Cause E001 of 2024) [2024] KEELRC 1273 (KLR)[2024] KEELRC 1273 (KLR)23 May 2024
Cite this brief
#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.