Olunga v Mumias Sugar Co .Ltd (Employment and Labour Relations Cause 23 of 2023) [2024] KEELRC 2661 (KLR)
The bottom line
#Kenya's Employment Court confirmed that employees with disabilities can register late and still retire at 60, winning compensation when employers retire them early.
What this practically means
#Executive summary
#Key legal issues
#Whether retirement at 55 years of a certified person with disability was lawful
The retirement was unlawful and in violation of section 15(6) of the Persons with Disabilities Act, since the claimant was certified as disabled and notified the employer 26 days after the retirement notice, before the retirement took effect.
The court adopted Justice Abuodha's reasoning in Margaret Martha Byama v Alice A. Otwala that the Act sets no deadline for registration as a person with disability, since disability can occur at any stage of life. The claimant's certificate dated 27th February 2013 was issued and communicated to the employer before the retirement date of 1st July 2013. The employer even subjected him to further authentication, confirmed his disability post-retirement, yet failed to extend his retirement age. Employer policy fixing retirement at 55 could not override the statute.
Whether the claimant was guilty of laches in notifying the employer of his disability
The court rejected the laches argument; the Act imposes no time limitation on notification, and the employer's reliance on lack of diligence did not defeat the claimant's statutory entitlement.
The respondent relied on BIFU v Barclays Bank (duty to notify illness promptly) and Edward Akong'o Oyugi (laches) to argue that the claimant slept on his rights. The court held that the Persons with Disabilities Act makes no provision on when a person must register once certified, and Parliament deliberately omitted timelines to avoid injustice. The court expressly upheld the Byama decision and applied it and the subsequent Kenya County Government Workers Union and Ogege decisions.
The appropriate remedy where reinstatement is unavailable
Compensation equivalent to 12 months' salary for unlawful termination through retirement, computed on the claimant's last gross monthly salary of Kshs. 95,750.80, totalling Kshs. 1,149,009.60.
Reinstatement was barred because more than three years had elapsed since termination under section 12(3)(vii) of the Employment and Labour Relations Act, and the employer was in receivership. Following Kenya County Government Workers Union v Nairobi City County Government, where 12 months' compensation was awarded for a shortened expected period of service, the court held that compensation for the 5 additional years the claimant could have worked was just and fair, using section 49 of the Employment Act as the alternative remedy.
Legal principles established
#- The Persons with Disabilities Act does not prescribe any time limit within which a certified person must register or notify their disability, so late notification of disability does not defeat the right to retire at the extended retirement age for persons living with disability.
- An employer's internal policy or practice cannot override the statutory right of a person living with disability to retire at the extended statutory retirement age.
Court orders
#- 1.A declaration is hereby issued that the Claimant was unlawfully retired without the benefits of persons with disability accorded under the law of Persons with Disability Act.
- 2.A declaration is hereby issued that the claimant falls under the persons with disabilities and that he should have been retired under no other scheme other than that of persons with disability which fall under minimum 60 years.
- 3.Compensation for the unlawful termination of contract is awarded equivalent of 12 months’ salary as at June 2013 when the Claimant was unlawful retired for the sum of Kshs, 1,149,009.60/-.
- 4.Costs to the Claimant
- Jurisdiction invoked
- Employment and Labour Relations Act, section 12 (first-instance employment and labour relations jurisdiction)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Gambedze v Kyumwa & 2 others (Cause E027 of 2024) [2024] KEELRC 2807 (KLR)[2024] KEELRC 2807 (KLR)14 Nov 2024followed
Cite this brief
#Cite this brief
Caselaw, "Olunga v Mumias Sugar Co .Ltd (Employment and Labour Relations Cause 23 of 2023) [2024] KEELRC 2661 (KLR)", Case Analysis (2024). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2661/eng@2024-10-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.