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ELRCAllowedAmended Petition dated 24/2/2025· [2025] KEELRC 1477 (KLR)

Ndurumo v University of Nairobi; Kenya National Commission on Human Rights (Interested Party) (Employment and Labour Relations Petition 88 of 2023) [2025] KEELRC 1477 (KLR)

Employment and Labour Relations Court
15 May 2025
2,000 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The Petitioner, a Professor in the Department of Psychology at the University of Nairobi and a registered deaf person under the National Council for Persons with Disability, petitioned for declarations that his retirement at 70 years, without the five-year extension for persons with disabilities provided in the University of Nairobi Disability Policy 2020, violated his rights to equality, non-discrimination, fair labour practices and fair administrative action. He sought mandamus to compel a review of his service by five years per a Public Service Commission direction, general damages and costs. The Respondent admitted the employment facts and disability registration but argued that the Disability Policy conflicted with the Persons with Disability Act and could not override the law, having retired the Petitioner at 70 per his terms of service and the University Pension Scheme 2007. The Interested Party (KNCHR) supported the Petitioner's claim to retire at 75. The court framed two issues: the applicable retirement age and whether a violation was proved. Relying on the undisputed Terms of Service Manual 2006 (retirement at 70 for teaching staff), clause 4.6(viii) of the Disability Policy and PSC guidance, the court held that the employer's policy documents form part of the employment contract and prevail over general public service circulars, and that failure to implement them breached the contract and violated Articles 27, 41 and 47. The petition succeeded: declarations of violation, mandamus to review service so the Petitioner retires at 75, general damages of Kshs. 3,000,000 and costs against the Respondent.

Key legal issues

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01

Whether the retirement age of the Petitioner, a professor with disability, was 65, 70 or 75 years

Holding

The retirement age for University of Nairobi teaching staff was 70 years, and the University's Disability Policy 2020 extended it by five years for persons with disabilities, so the Petitioner was entitled to retire at 75 years.

Reasoning

The court relied on the undisputed Terms of Service Manual 2006, which set retirement at 70 for teaching staff, and on clause 4.6(viii) of the University of Nairobi Disability Policy 2020, which mandated a five-year extension for persons with disabilities. The PSC had advised the Respondent that the Disability Policy issued after the Pension Scheme 2007 overrode it, and that the Respondent was in breach of its own policy.

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02

Whether the failure to extend retirement constituted a constitutional violation

Holding

The failure to honour the policy breached the contract of employment and violated the Petitioner's rights to equality, fair labour practices and fair administrative action.

Reasoning

Policy documents form part of the employment contract; failing to implement them amounts to unfair labour practice and unfair and unreasonable administrative action. The court held Articles 27, 41 and 47 were violated, the latter elaborated by the Fair Administrative Action Act 2015, and that the Respondent wrongly elevated a general public service circular over its own specific policy.

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Quantum of general damages for the constitutional violations

Holding

General damages of Kshs. 3,000,000.00 awarded, guided by the award in George Otieno Awiti vs National Police Commission & 3 others where Kshs. 5 million was awarded.

Reasoning

The court considered awards in comparable constitutional violation decisions. In Awiti the court had found treatment contrary to Articles 28, 41 and 47 and awarded Kshs. 5 million. Taking into account the circumstances of the present case, the court considered a lesser award of Kshs. 3 million appropriate.

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Legal principles established

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  • An employer's human resource policy document constitutes part and parcel of the employment contract, and failure to implement it is a breach of contract and unfair labour practice.
  • A specific employer-developed human resource policy incorporated into terms and conditions of service prevails over a general public service document or statute not specifically applicable to that employer's staff.

Court orders

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  1. 1.Declaration that the Respondent violated the Petitioner's rights under Articles 27(1), 41(1) and 47(1) of the Constitution
  2. 2.Order of mandamus directing the Respondent to review the Petitioner's years of service by 5 years from the date he was retired, in accordance with the PSC letter dated 28th July 2022, so as to retire upon attaining 75 years
  3. 3.General damages of Kshs. 3,000,000.00 for the violation of the Petitioner's constitutional rights
  4. 4.The Respondent to pay the costs of the petition
Jurisdiction invoked
Articles 22(1), 22(2), 23(3) and 258(1) of the Constitution of Kenya, 2010

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, "Ndurumo v University of Nairobi; Kenya National Commission on Human Rights (Interested Party) (Employment and Labour Relations Petition 88 of 2023) [2025] KEELRC 1477 (KLR)", Case Analysis (2025). Amended Petition dated 24/2/2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1477/eng@2025-05-15

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