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ELRCDismissedPetition dated 21st September 2020· [2021] KEELRC 2069 (KLR)

Kinyua Felix v Ministry of Education & 2 others [2021] KEELRC 2069 (KLR)

Employment and Labour Relations Court
26 February 2021
MOMaureen Onyango
4,178 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan teacher's claim to retire at 65 as a disabled public servant failed because he registered as disabled too late and proved no discrimination.

What this practically means

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Executive summary

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The petitioner, a Principal Records Management Officer employed in the public service since 1984, petitioned the Employment and Labour Relations Court seeking declarations that the respondents' failure to extend his retirement age from 60 to 65 years violated his rights under Article 27 of the Constitution, Article 7 of the Universal Declaration of Human Rights, the Employment Act and the Persons with Disability Act. He sought nullification of the retirement notice, a permanent injunction against retirement at 60, salary arrears of Kshs.4,932,420/- and general damages of Kshs.10 million. He relied on a government circular and certification by the National Council for Persons with Disabilities. The respondents contended that the petitioner declared no physical impairment on his PSC2 employment form, registered with the Council only one year before retirement, never obtained a KRA tax exemption certificate, and that his impairment (a limp) did not adversely affect his participation in social, economic or environmental life. The court framed two issues: discrimination and entitlement to retire at 65. It found no proof of differential treatment and held that the petitioner failed to satisfy Regulation 70 of the Public Service Commission Regulations, 2020, which requires registration at least three years before retirement, a tax exemption certificate and a permanent disability with substantial impact. The petitioner was estopped from asserting disability since birth. The petition was dismissed with each party bearing its own costs.

Key legal issues

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01

Whether the petitioner was discriminated against on the basis of disability, age or health

Holding

No discrimination proved; the petitioner did not demonstrate differential treatment from comparators

Reasoning

The court applied Article 27(4) which prohibits discrimination on grounds including age and disability. The petitioner bore the burden of proving he was treated differently from others in the same situation, and failed to plead or demonstrate less favourable treatment compared with other public servants in similar circumstances. The claim under Article 27 and Article 7 of the Universal Declaration of Human Rights therefore failed.

p. 5
02

Whether the petitioner was entitled to retire at 65 years as a person with disability

Holding

No entitlement; the petitioner failed to satisfy Regulation 70 of the Public Service Commission Regulations, 2020

Reasoning

Regulation 70 requires a permanent disability with substantial impact on day-to-day activities, registration in the public body's HR database at least three years before retirement, and registration with the National Council for Persons with Disabilities plus a KRA tax exemption certificate. The petitioner registered with the Council only one year before retirement, never obtained a tax exemption certificate, answered 'NO' to physical impairment on his PSC2 form, and his medical report showed only a limp. Estoppel also applied against his claim of disability since birth.

p. 6
03

Whether the Public Service Commission Regulations, 2020 applied retrospectively to the petitioner's request

Holding

The court found it unnecessary to resolve retrospectivity since the petitioner would fail regardless

Reasoning

The petitioner argued his request was made and declined before the Regulations were published on 28 January 2020, so they could not apply retrospectively. The court held that even if this were the case, the petitioner would still not be entitled to the orders sought because he never explained why he did not apply earlier if disabled since birth, nor why he did not disclose the disability at recruitment.

p. 6

Legal principles established

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  • To prove discrimination a petitioner must show he was treated differently or less favourably than persons in similar circumstances
  • Under Regulation 70 of the Public Service Commission Regulations, 2020, retirement at 65 for persons with disability requires registration at least three years before retirement and a tax exemption certificate; registration is not automatic evidence of disability
  • A claimant who denies any physical impairment at recruitment and registers as disabled only one year before retirement is estopped from claiming disability since birth

Court orders

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  1. 1.The petition is dismissed
  2. 2.Each party shall bear its costs

Authorities

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Legislation

  • Constitution of KenyaArticle 27(4)
  • Constitution of KenyaArticles 27, 28, 41(1), 23(3), 159(2)(d), 48
  • Persons with Disability ActSections 2, 7(1)(c), 15, 35(1)
  • Public Service Commission Regulations, 2020Regulation 70
  • Employment ActSections 5(3), 49
  • Universal Declaration of Human RightsArticle 7
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B

Cases cited (11)

  • Mary Kerubo Osoro v Public Service Commission
    (2017) eKLR
  • Stephen Kariuki Kamau & 5 Others v Kenya Ports Authority and 6 Others
  • Reuben Njunguna Gachukia & Another v Inspector General of the National Police Service & 4 others
    (2019) eKLR
  • Minister of Health & Others v Treatment Action Campaign & Others
    (2002) 5 LR.C 216
  • Siewchand Ramanoop v The AG of T&T
    PC Appeal No 13 of 2004
  • Gitobu Imanyara & 2 Others v Attorney General
    (2016) eKLR
  • Caleb Onyango Andongo v Benard Ouma Ogur
    (2020) eKLR
  • East Africa Portland Cement Company Ltd v Attorney General & Another
    (2013)
  • Jane Angalia Obando v TSC & 2 Others
    ELRC Petition 4 of 2020
  • Rift Valley Textiles Limited v Edward Onyango Oganda
    Civil Appeal No. 27 of 1992
  • Elizabeth Wakanyi Kibe v Telkom Kenya Ltd
    (204) eKLR
Jurisdiction invoked
Articles 23(1) and 27 of the Constitution of Kenya (enforcement of fundamental rights and freedoms; employment and labour relations jurisdiction)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (7)

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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, "Kinyua Felix v Ministry of Education & 2 others [2021] KEELRC 2069 (KLR)", Case Analysis (2021). Petition dated 21st September 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/2069/eng@2021-02-26

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