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ELRCDismissedPetition (Eldoret), filed 28th June 2023· [2023] KEELRC 3109 (KLR)

Fwamba v Moi Teaching and Referral Hospital; National Council for Persons with Disabilities (Interested Party) (Petition E003 of 2023) [2023] KEELRC 3109 (KLR)

Employment and Labour Relations Court
24 November 2023
MOM. Onyango
3,957 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled a disabled employee could not retire at 65 without both a disability registration and a tax exemption certificate.

What this practically means

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Executive summary

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The Petitioner, an employee of the Respondent hospital, was issued retirement notices (letters dated 9th May 2023 and 10th June 2022) indicating she would retire at 60 years. She sought declarations that this violated her constitutional rights, contending that as a registered Person Living With Disability she was entitled to retire at 65 years under Regulation 70 of the Public Service Commission Regulations, 2020 and the Respondent's own HR Policy Manual. She alleged she sustained her disability in 2005 while working, was registered by the National Council for Persons With Disabilities in December 2019, and that applying the three-year database registration requirement to her was impermissibly retroactive. The Respondent countered that Regulation 70(2) imposes conjunctive conditions: permanent disability, registration in the public body's human resource database for at least three years before retirement, and registration by the Council with a tax exemption certificate. The Petitioner only submitted her documents on 28th September 2022, months after the retirement notice, and attached only an acknowledgment of her tax exemption application, not the certificate. The court held it possessed mandate to inquire into employment terms and statutory instruments, but found the Petitioner did not satisfy the prerequisites for extension of her retirement age to 65, noting the Respondent's manual was expressly guided by prevailing government guidelines. The petition was dismissed with each party bearing its own costs.

Key legal issues

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01

Whether the Respondent breached the Petitioner's right to retire at 65 as a Person With Disability

Holding

No breach; the Petitioner failed to meet Regulation 70(2) requirements, lacking a tax exemption certificate and database registration for at least three years before retirement

Reasoning

Regulation 70(2) of the Public Service Commission Regulations, 2020 requires permanent disability, registration in the public body's HR database for at least three years before retirement, and registration by the National Council with a tax exemption certificate. The Petitioner registered on 17th/19th December 2019, submitted documents on 28th September 2022, and only attached an acknowledgment of her tax exemption application, not the certificate itself. She therefore did not qualify for retirement at 65.

p. 9
02

Whether this court has mandate to grant the orders sought against a statutory instrument

Holding

The court has constitutional and statutory mandate to inquire into all terms and conditions of employment including statutory instruments

Reasoning

The Respondent argued it could not comply with any court order extending retirement age as this would intrude on the PSC's mandate. The court rejected this as absurd, holding that statutory regulations rank below statutes and the Constitution, and the court may declare them unconstitutional or non-compliant with statute if warranted.

p. 8

Legal principles established

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  • The ELRC has constitutional and statutory mandate to inquire into all terms and conditions of employment including statutory instruments relating to employment
  • Both registration by the National Council for Persons with Disabilities and a tax exemption certificate are prerequisites for extension of retirement age to 65 years

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 KenyaArticles 10, 24(1), 27(1)(4), 27(8), 38, 41(1), 47, 54, 54(1)(a), 81(b), 177(1)(c)
  • Public Service Commission ActSection 80
  • Public Service Commission Regulations, 2020Regulation 70
  • Statutory Instruments Act No. 23 of 2013
  • Universal Declaration of Human RightsArticle 7
  • MTRH Human Resource Policy and Procedures Manual, August 2018Section 13.7.1
  • Human Resource Policies and Procedural Manual for the Public Service, May 2016Section D.21

Cases cited (4)

  • Margaret Martha Byama vs Alice Otwala, The Public Service Commission and Two others
    [2016] eKLR, ELRC Petition No. 74 of 2015
  • Justice Kalpana H. Rawal v Judicial Service Commission & 3 others
    (2016) eKLR
  • Aminga vs Cabinet Secretary Ministry of Education, Science and Technology & 2 others
    (Petition E020 of 2020) (2023) KEELRC 32 (KLR)
  • Films Rover International v Cannon Films Sales Limited
    (1986) 3 ALL ER 772
Jurisdiction invoked
Articles 27(1)(4), 41(1), 47, 54(1)(a) of the Constitution; ELRC constitutional and statutory mandate over terms and conditions of employment

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, "Fwamba v Moi Teaching and Referral Hospital; National Council for Persons with Disabilities (Interested Party) (Petition E003 of 2023) [2023] KEELRC 3109 (KLR)", Case Analysis (2023). Petition (Eldoret), filed 28th June 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3109/eng@2023-11-24

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