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ELRCPartially AllowedPetition dated 1st December 2020 (ELRC)· [2022] KEELRC 811 (KLR)

Engineer Samwel Ogola Ogege v Cabinet Secretary, Ministry of Transport and Public Works (State Department of Infrastructure) & another; Public Service Commission (Psc)& another (Interested Party) [2022] KEELRC 811 (KLR)

Employment and Labour Relations Court
10 February 2022
MNMathews N. Nduma
3,154 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court confirmed that public servants with disabilities retire at 65, and new rules cannot retroactively take away that right.

What this practically means

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Executive summary

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The petitioner, employed since 1986 and seconded to the 2nd respondent in 2009, suffered a leg injury in 2014 in the course of duty and was registered as a Person With Disability on 20 June 2019. Notified in February 2019 of mandatory retirement at 60 years effective 30 June 2020, he sought extension to 65 years relying on a 2012 circular providing that persons with disabilities in public service retire at 65. The respondents refused, invoking Regulation 70(2)(b) of the Public Service Commission Regulations, 2020, which required registration in the NCPWD database at least three years before retirement and possession of a tax exemption certificate. The court framed three issues: breach of the statutory right to retire at 65, the effective date and applicability of Regulation 70(2)(b), and alleged violation of constitutional rights. Relying on the Statutory Instruments Act and the Supreme Court's decision in Samuel Kamau Macharia, the court held that the 2020 Regulation, effective 28 January 2020, could not apply retroactively to divest the petitioner of vested rights, and that disability exists as a fact independent of registration. The decision to apply the Regulation was declared null and void. However, no violation of constitutional rights was proved because conservatory orders had preserved the petitioner in service with full benefits. The petition succeeded in part: a declaration issued, a mandatory injunction directed that the retirement age be extended to 65, unpaid emoluments ordered paid, and costs awarded against the 2nd respondent and 1st interested party.

Key legal issues

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01

Retroactive application of Regulation 70(2)(b) of the PSC Regulations, 2020

Holding

The Regulation, effective 28 January 2020, could not be applied retroactively to the petitioner who was disabled in 2014 and registered on 20 June 2019; the retroactive application was unconstitutional, null and void

Reasoning

The court held that the Regulations came into operation on 28 January 2020, after the petitioner had suffered his disability and been registered. Applying the three-year registration and tax exemption conditions to him retroactively violated the Statutory Instruments Act, Article 24(1) of the Constitution, and divested vested rights, rendering the decision arbitrary and void ab initio.

p. 4
02

Whether the petitioner's constitutional rights were violated

Holding

No violation proved, since the conservatory orders preserved the petitioner in service with full remuneration pending determination

Reasoning

The court found that the premature retirement had never taken effect; the petitioner continued working without loss of benefits, and the income earned was pensionable. The respondents and interested parties complied with the interim injunctive orders, so no infringement of rights was established.

p. 5

Legal principles established

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  • A statutory instrument cannot be applied retroactively to divest vested rights; retroactive application divesting vested rights is unconstitutional
  • Disability exists as a fact whether registered or not; registration merely operationalises rights already conferred

Court orders

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  1. 1.A declaration that the retroactive application of Regulation 70(2)(b) of the Public Service Commission Regulations, 2020 by the 2nd Respondent and 1st interested party is unconstitutional, unlawful, null and void to the extent it purported to deny the petitioner the right to retire at 65 years as a person with disability
  2. 2.A mandatory injunction directed at the 2nd respondent and 1st interested party to process, approve and do all things necessary to extend the petitioner's retirement age to 65 years
  3. 3.An order that the 2nd respondent pay the petitioner any and all salaries, benefits and/or emoluments due but not remitted on account of the unlawful withholding
  4. 4.Costs of the suit to be borne by the 2nd respondent and the 1st interested party

Authorities

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Legislation

  • Constitution of KenyaArticles 24(1), 27(1)(4), 41(1), 47, 54(1)(a)
  • Universal Declaration of Human RightsArticle 7
  • Public Service Commission RegulationsRegulation 70(2)(b)
  • Public Service Commission of Kenya ActSection 70(2)(b)
  • Persons with Disability ActSections 2, 7(1)(c); Cap. 189 / No. 14 of 2003
  • Statutory Instruments ActSection 23(1)
  • Code of Regulations (Revised 2006)Regulation R19(1)

Cases cited (2)

  • Margaret Martha Byama –vs- Alice Otwala, The Public Service Commission and Two others
    [2016] eKLR, ELRC Petition No. 74 of 2015
  • Samuel Kamau Macharia and Another –vs- Kenya Commercial Bank Limited & 2 Others
    [2012] eKLR
Jurisdiction invoked
Articles 27(1)(4), 41(1), 47, 54(1)(a) of the Constitution of Kenya (petition for enforcement of fundamental rights and freedoms); Article 23 (implied)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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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, "Engineer Samwel Ogola Ogege v Cabinet Secretary, Ministry of Transport and Public Works (State Department of Infrastructure) & another; Public Service Commission (Psc)& another (Interested Party) [2022] KEELRC 811 (KLR)", Case Analysis (2022). Petition dated 1st December 2020 (ELRC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/811/eng@2022-02-10

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