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ELRCDismissedPetition dated August 29, 2022· [2023] KEELRC 826 (KLR)

Karugu v Public Service Board of Nakuru & another (Employment and Labour Relations Petition E008 of 2022) [2023] KEELRC 826 (KLR)

Employment and Labour Relations Court
13 April 2023
HWHellen Wasilwa
2,758 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A nurse who challenged her retirement as too early lost because she delayed complaining and could not prove her birth date with reliable records.

What this practically means

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Executive summary

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The petitioner, a Kenya Enrolled Community Nurse employed by the Respondents since 1986, challenged her compulsory retirement on June 30, 2022 by a petition filed on August 29, 2022. She sought declarations that her retirement was null and void and done in bad faith, a permanent injunction, compensation for loss of earnings, six months' salary, two months' leave entitlements, pension statements, and twelve months' gross salary as compensation for unfair termination. She asserted a date of birth of December 31, 1962, relying on her birth certificate, and cited authority that a birth certificate prevails over an identity card in fixing retirement age. The Respondents, through a replying affidavit of Moses Bii, maintained that the petitioner declared only the year 1962 (with no date or month) on Form PSC 2 and on her identity card; that per the 2008 circular the initially declared particulars govern; and that the birth certificate was supplied only after the retirement notice. They relied on Abdinoor Sheikh Takoy and Daniel Wambugu Ngururi, where courts upheld retirement based on employer records absent timely notification of a changed birth date. The court found the petitioner declared only 1962 in 1986, was notified of retirement a year in advance, complained only at the tail end of the notice period, and produced a birth certificate of doubtful validity (no year of issue). Holding the petitioner guilty of laches and finding she failed to establish her case, the court dismissed the petition with costs on April 13, 2023.

Key legal issues

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01

Whether the petitioner was prematurely retired on June 30, 2022 when her birth certificate showed a date of birth of December 31, 1962

Holding

The petition failed because the employment records showed only year of birth (1962) without date or month, the birth certificate was produced only after the retirement decision and was itself incomplete and suspect, and the petitioner delayed complaining for almost a year after the notice

Reasoning

The court found that at employment in 1986 the petitioner declared only 1962 as her year of birth, and her ID showed the same. She was notified of retirement on March 25, 2021, a year in advance, but only complained on June 8, 2022. The birth certificate produced later bore a date of issue of January 6 with no year, making it suspect. Her delay and the doubt on the document meant she failed to prove her case.

p. 6

Legal principles established

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  • An employee who furnished only the year of birth without date or month in employment records, and who raises a disputed birth date only after a retirement notice, cannot rely on a later-obtained birth certificate to vary the retirement date

Court orders

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  1. 1.The petition is dismissed with costs

Authorities

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Legislation

  • Constitution of Kenya 2010Articles 10, 41, 47, 50, 50(7), 236, 259(5)(c)
  • Fair Administrative Actions ActSection 4
  • Employment ActSections 41, 43, 45, 49(1)(c)
  • Civil Servants Actmandatory retirement age of 60 years
  • County Government ActSection 59
  • Public Service Commission Circular DPM-PA/5/7 Vol LII(170)dated September 25, 2008
  • Public Service Commission Circular PSC/ADM/13(9)dated November 19, 2020

Cases cited (4)

  • Walter Ogal Anuro v Teachers Service Commission [2013] eKLR
    [2013] eKLR
  • Republic v Judicial Service Commission & 2 others ex parte Hon Judge Erastus Githinji
  • Abdinoor Sheikh Takoy v Kenya National Highways Authority [2022] eKLR
    [2022] eKLR
  • Daniel Wambugu Ngururi v Teacher Service Commission [2020] eKLR
    [2020] eKLR
Jurisdiction invoked
Constitution of Kenya 2010 (petition asserting violations of Articles 41, 47, 50 and 236) before the Employment and Labour Relations Court

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, "Karugu v Public Service Board of Nakuru & another (Employment and Labour Relations Petition E008 of 2022) [2023] KEELRC 826 (KLR)", Case Analysis (2023). Petition dated August 29, 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/826/eng@2023-04-13

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