Nathan Mukewa v Alupe University College [2022] KEELRC 881 (KLR)
The bottom line
#A Kenyan court confirmed an accountant's retirement at 60 was lawful because he wasn't registered as a person with disability before reaching retirement age.
What this practically means
#Executive summary
#Key legal issues
#Retirement age of persons with disability
The minimum retirement age for public officers generally is 60, but persons with disabilities retire at 65; the Claimant was not registered or declared disabled and so retired at 60.
Section 15(6) of the Persons with Disabilities Act and the PSC Human Resources Policies and Procedures Manual provide retirement at 65 for persons with disabilities. However, the Claimant's PWD assessment form did not identify any disability, and none of the medical reports declared him disabled. Section 80 of the Public Service Commission Act is in mandatory terms, so the Respondent could not extend service beyond 60 without a declaration of disability.
Whether the Claimant was unfairly terminated
No unfair termination arose; retirement on attaining 60 years under KUSU terms is a natural consequence, not termination under sections 41 and 45 of the Employment Act.
The court held retirement on grounds of age is not termination. The Claimant's appointment letter was a continuation of his Moi University service under KUSU terms, under which retirement for grade 10 staff is at 60. The Claimant admitted attaining 60 by 30th June 2018, so the unfair termination provisions were not engaged.
Whether the Claimant was validly retired
The retirement was valid; Moi University, as a common employer with the Respondent under the Alupe University College Order 2015, was entitled to issue the retirement notice.
The court found this a sui generis case: the Claimant never resigned from Moi University, remained on secondment and a KUSU member, and the Legal Notice created a continuing relationship making Moi University and the Respondent common employers. The Respondent was entitled to rely on the Moi University retirement notice, and the Claimant was aware of the retirement date at all material times.
Whether withholding the final salary pending clearance was an unfair labour practice
The Respondent was justified in withholding the last salary pending clearance; it was not a disciplinary sanction and section 19 of the Employment Act permits deductions for losses lawfully in the employee's custody.
Although the court accepted Rika J's holding in Peterson Ndung'u that section 19 does not permit withholding wages as a disciplinary step, here the withholding was not disciplinary but a set-off security for debts at clearance. The Claimant gave no reason for failing to comply with clearance directions and no contrary public service practice was shown.
Whether the Claimant proved discrimination on account of disability
No discrimination was proven; the medical documents did not certify disability and the decision to retire preceded the litigation.
The PWD assessment form lacked the type of disability, DMS remarks and signature; no medical report recommended the Claimant as disabled, distinguishing the Margaret Martha Byama case where a doctor certified disability and the petitioner was registered. The retirement decision was finalized by the Respondent's letter of 20th December 2017, before the suit, defeating the victimization claim.
Legal principles established
#- Retirement on attaining mandatory retirement age is not synonymous with termination of service under the Employment Act
- Registration as a person with disability is a mandatory prerequisite for retiring at 65 in public service
- An employer may lawfully withhold the final month's salary of a retiring employee pending clearance for set-off of debts under section 19 of the Employment Act
- Where a constituent college and its parent university are common employers, either may act on a retirement notice issued by the other
Court orders
#- 1.The claim dated 22nd January 2018 and amended 31st July 2018 is dismissed
- 2.The Claimant to proceed and clear with the Respondent and his terminal dues be paid within 30 days of clearance
- 3.Each party to bear own costs in the suit
- Jurisdiction invoked
- Employment and labour relations jurisdiction under Article 162(2) of the Constitution of Kenya, 2010 (as a first-instance claim under the Employment Act, 2007)
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.
- Nyarigu v Multichoice Kenya Limited (Cause 1552 of 2018) [2023] KEELRC 2898 (KLR)[2023] KEELRC 2898 (KLR)15 Nov 2023
- Nyarigu v Multichoice Kenya Limited (Cause 1552 of 2018) [2023] KEELRC 2898 (KLR)[2023] KEELRC 2898 (KLR)15 Nov 2023
Cite this brief
#Cite this brief
Caselaw, "Nathan Mukewa v Alupe University College [2022] KEELRC 881 (KLR)", Case Analysis (2022). Employment and Labour Relations Court Claim dated 22nd January 2018, amended 31st July 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/881/eng@2022-02-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.