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ELRCPartially AllowedPetition (lodged 28th October 2021)· [2023] KEELRC 174 (KLR)

Getonto v National Police Service Commission & another (Petition E168 of 2021) [2023] KEELRC 174 (KLR)

Employment and Labour Relations Court
31 January 2023
5,341 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

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A Kenyan police officer forced to retire at 60 won reinstatement to 65 with back-pay, because disability retirement at 65 is automatic, not discretionary.

What this practically means

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Executive summary

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The Petitioner, a CID officer enlisted in 1984, was stabbed by a suspect in December 1995 while apprehending robbery suspects at Runyenjes, sustaining permanent incapacity assessed at 10% in a Workmen's Compensation Act medical report generated by his employer in 1996. Retired on 30th June 2020 at the mandatory age of 60, he sought retirement at 65 as a person living with disability under Section D21 of the Human Resource Policies and Procedures Manual for the Public Service 2016, supported by a National Council for Persons With Disabilities certificate. The Respondents maintained he never disclosed disability before retirement, that the Public Service Commission Regulations 2020 required registration in the employer's database at least 3 years before retirement, and that assessment by a Special Medical Board was required. The Court held the Petitioner was a person living with disability from 1995; that the employer knew of his incapacity from its own 1996 medical records; that the 2020 Regulations could not apply retroactively; and that retirement at 65 for persons with disability is automatic, not discretionary. The Court found violations of Articles 27, 41, 43, 47 and 232 of the Constitution, Sections 12 and 15 of the Persons With Disabilities Act and Section 5 of the Employment Act. It granted certiorari quashing the retirement, mandamus reinstating the Petitioner to age 65 with full back-pay and benefits, or alternatively compensation of Kshs. 4,500,000, with interest but no order on costs.

Key legal issues

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01

Whether the Petitioner was a person living with disability

Holding

Yes - his 1995 on-duty stabbing injury resulting in 10% permanent incapacity constituted disability; the employer held the medical records from 1996 confirming it

Reasoning

The Court relied on the 1996 Workmen's Compensation Act Notice with a Medical Report confirming permanent incapacity, and the 2020 Mama Lucy Kibaki Hospital report with similar diagnosis. 'Disability' and 'incapacity' overlap; permanent incapacity fits the statutory definition in the Persons With Disabilities Act and the Employment Act. The employer therefore knew of the disability from 1996.

p. 6
02

Whether the 3-year registration requirement in the Public Service Commission Regulations 2020 applied to the Petitioner

Holding

No - the Regulations commenced January 2020, six months before his retirement, and cannot apply retroactively; a Special Medical Board was also unnecessary given the employer's own 1996 medical report

Reasoning

Following Ogege, the Court held the Regulations of 28th January 2020 could not operate retrospectively to defeat an officer retiring on 30th June 2020. Section D21 of the 2016 Manual grants automatic retirement at 65 to persons with disability without application. The employer's own inception medical report made a Special Medical Board needless.

p. 7
03

Whether constitutional rights were violated

Holding

Yes - violations of Articles 27, 41, 43(1)(e), 47 and 232, and Sections 12 and 15 of the Persons With Disabilities Act and Section 5 of the Employment Act, through discrimination on grounds of disability and age and unfair administrative/labour practice

Reasoning

The Respondents retired the Petitioner at 60 without responding to his extension request or giving reasons, and treated his disability as rendering further service infeasible. The Court found discrimination on grounds of disability and age, impairment of his social security rights, and contravention of public service values requiring equal opportunities for persons with disabilities.

p. 9
04

Appropriate remedies

Holding

Certiorari quashing the retirement decision; mandamus reinstating the Petitioner to age 65 with full back-pay and benefits; alternatively compensation of Kshs. 4,500,000 (5 years at Kshs. 75,000 monthly)

Reasoning

The Court restored the Petitioner to employment until 65 years without loss of benefits, treating compensation as an alternative only. Compensation was pegged to the income the Petitioner should have earned over the extended 5-year period, as the policy aims at social security and protection for a disadvantaged category of employees.

p. 10

Legal principles established

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  • Permanent incapacity of any degree fits within the statutory definition of 'disability'; disability rights accrue automatically upon proof of permanent incapacity, and certification by the National Council for Persons With Disabilities is merely procedural
  • Retirement at 65 years for persons with disabilities is automatic under Section D21 of the Human Resource Policies and Procedures Manual, not a discretionary benefit requiring an application
  • The Public Service Commission Regulations 2020 requiring 3 years' notice cannot apply retroactively to officers retiring shortly after their commencement

Court orders

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  1. 1.Declaration that the Respondents violated the Petitioner's constitutional and legal rights under Articles 27, 41, 43, 47 and 232 of the Constitution; Sections 12 and 15 of Persons With Disabilities Act; and Section 5 of the Employment Act
  2. 2.Order of Certiorari quashing the decision to retire the Petitioner before age 65 and removing him from the Payroll
  3. 3.Order of Mandamus compelling the Respondents to reinstate the Petitioner to employment in the rank held on retirement, with all back-pay, benefits and privileges, until he attains the age of 65 years
  4. 4.In the alternative, compensation equivalent of 5 years' gross monthly salary at Kshs. 4,500,000
  5. 5.Respondents to write to the Petitioner within 30 days indicating which option shall apply
  6. 6.No order on costs
  7. 7.Interest at court rate from date of Judgment until satisfaction in full

Authorities

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Legislation

  • Constitution of KenyaArticles 10, 20(1)&(2), 24(1), 25(c), 27(4), 29(d), 41, 43(1)(e), 47, 50(1), 232(1)(I)(iii), 260
  • Human Resource Policies and Procedures Manual for the Public Service, 2016Section D21
  • Public Service Commission Regulations (Legal Notice No. 3 of 2020)Regulation 70(2)(b)
  • Persons With Disabilities Act, Cap 133Sections 2, 12, 15
  • Employment ActSections 2, 5, 5(2)
  • National Police Service Commission Act, Cap 185CSection 10(1)(a)
  • Workmen's Compensation ActNotice of Accident provisions
  • National Police Service [Recruitment and Appointments] Regulations, 2015Medical Board assessment
  • Retirement Age Circular of 29th May 2012Retirement age for officers with disability at 65 years

Cases cited (3)

  • Margaret Martha Byama v. Alice A. Otwala & 3 Others
    [2016] e-KLR
  • Engineer Samuel Ogola Ogege v. Cabinet Secretary, Ministry of Transport and Public Works [State Department of Infrastructure] & Another; Public Service Commission [PSC] & Another [Interested Party]
    [2022] e-KLR
  • Idle Alas Sheikh Hassan v. National Police Service Commission & 3 Others
    [Petition E032 of 2022]
Jurisdiction invoked
Constitutional petition under the Bill of Rights (Articles 20, 24, 25(c), 27, 29(d), 41, 43(e), 47, 50(1), 232 pleaded)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Getonto v National Police Service Commission & another (Petition E168 of 2021) [2023] KEELRC 174 (KLR)", Case Analysis (2023). Petition (lodged 28th October 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/174/eng@2023-01-31

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