Dahiye v Kenya Accreditation Service & another (Employment and Labour Relations Cause E377 of 2024) [2025] KEELRC 1668 (KLR)
The bottom line
#A Kenyan court ruled a public officer who registered his disability less than three years before turning 60 cannot claim the extended retirement age of 65.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction premised on non-exhaustion of internal dispute resolution mechanisms
The court has jurisdiction; internal mechanisms do not oust it, and a party relying on them must seek a stay.
The Respondents argued the Claimant bypassed the internal procedures in the Human Resource Manual, making the suit premature. The court held that alternative mechanisms postpone but do not obliterate jurisdiction, and that a party desiring to pursue them must move the court for a stay, which the Respondents never did. Rule 56 of the ELRC (Procedure) Rules, 2024 confirms the court may stay rather than strike out such matters.
Entitlement to retire at 65 as a person living with disability
The Claimant was not entitled, having registered his disability less than three years before attaining age 60; the exemption power covers only disabilities occurring within three years of retirement.
Regulation 70(1) of the PSC Regulations, 2020 grants persons with disability a retirement age of 65, but regulation 70(2) requires registration at least three years before retirement. The proviso empowers the Commission to exempt only those whose disability occurred less than three years to retirement. The Claimant registered on 21st January 2021, about two years and three months before 1st April 2023, and did not plead late onset of disability. Consistent precedent supports this reading.
Effect of the PSC advisory and reinstatement
Though irregular, the reinstatement gave the Claimant an accrued right to work until age 65 going forward.
The court found the retirement on 1st April 2023 validly extinguished the contract, revived in August 2023 following the Commission's advisory. It declined to nullify the subsisting contract since it was not invited to do so, and held the employer could not thereafter terminate on account of attaining age 60.
Alleged discrimination in filling the Principal Accreditation Officer position
No discrimination; the position was filled competitively after the Claimant was shortlisted and interviewed.
The Claimant alleged the successful candidate was his junior, related to a panelist, an outsider, and unqualified, but provided no cogent evidence under cross-examination. Documents showed he applied, was shortlisted and interviewed. The position fell within grades filled by external advertisement and competitive recruitment under the Manual's career development guidelines, defeating the claim of irregular external sourcing.
Claim for salary April to July 2023
Rejected; the contract was validly closed on retirement and only revived in August 2023, so no remuneration accrued in the interim.
Although the court agreed that clause 6.9.1 on unpaid leave in the Human Resource Manual could not cover the period, the Claimant's employment had validly ceased upon lawful retirement at 60 because his disability registration was out of time. He therefore legitimately remained out of employment until the contract was revived on the Commission's advisory.
Legal principles established
#- The existence of internal alternative dispute resolution mechanisms does not oust the court's jurisdiction; it only postpones it, and a party wishing to pursue those mechanisms must apply for a stay of proceedings.
- A public officer must register as a person living with disability at least three years before attaining the mandatory retirement age of sixty years to benefit from the extended retirement age of sixty-five years; the Commission's exemption power extends only to disabilities occurring less than three years before retirement.
- Where an employer reinstates an employee on the strength of a Commission advisory, the employee acquires an accrued right to serve until the extended retirement age of sixty-five years.
Court orders
#- 1.The Claimant's claim is dismissed in its entirety.
- 2.The Claimant's contract of service was revived from 2nd August 2023 and he acquired an accrued right to continue in employment until he attains the retirement age of sixty five (65) years; his services cannot be terminated on account of attainment of the mandatory retirement age of sixty (60) years unless he is otherwise lawfully removed from employment.
- 3.Each party to bear own costs for the suit.
- Jurisdiction invoked
- Article 162(2) of the Constitution / Employment and Labour Relations Court Act (employment and labour relations dispute; jurisdiction challenged on prematurity but upheld)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Dahiye v Kenya Accreditation Service & another (Employment and Labour Relations Cause E377 of 2024) [2025] KEELRC 1668 (KLR)", Case Analysis (2025). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1668/eng@2025-06-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.