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ELRCDismissedMCELRC Appeal from Nairobi CMELC No. 1693 of 2019 (memorandum of appeal dated 5th June 2023)· [2025] KEELRC 1723 (KLR)

Kamau v Nairobi City County (Employment and Labour Relations Appeal E089 of 2023) [2025] KEELRC 1723 (KLR)

Employment and Labour Relations Court
12 June 2025
5,820 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~23 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court confirmed you must register your disability before retirement to claim disability-based benefits against a former employer.

What this practically means

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Executive summary

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The Appellant, a former cleaner retired on 31st December 2016 at age 60, appealed against the judgment of Hon. R.L. Musiega (SRM) delivered on 5th May 2023 in MCELRC No. 1693 of 2019, which had dismissed her claim for damages, declaratory orders of discrimination, salary from January 2017, and reinstatement or compensation to age 65 on the basis that she was a person living with disability. The claim had been heard ex-parte after the Respondent filed only a statement of defence. On appeal, the court framed three issues: whether the Appellant qualified as a person living with disability at the time of retirement; whether the magistrate erred in applying Regulation 70 of the Public Service Commission Regulations, 2020 retrospectively; and whether the appeal was merited. The court held that the Appellant was only assessed and registered as a person with disability in March and April 2017, after retirement, that she failed to provide the medical report the Respondent had requested in October 2011, and that no employer-employee relationship existed post-retirement to sustain a discrimination claim; the Byama case was distinguished because that employee was certified before retirement. However, the court agreed that the trial court erred in applying the 2020 Regulations retrospectively, since Regulation 82 revoked the 2005 Regulations and the general rule against retrospectivity applies; it departed from the Aminga decision on that point. Despite finding that ground merited, the court dismissed the appeal, making no order as to costs in view of the Appellant's disability, and marked the file closed.

Key legal issues

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01

Whether the appellant qualified as a person living with disability as at the time of retirement

Holding

No - she was assessed and registered as a person living with disability only post-retirement (27th March 2017), after her retirement on 31st December 2016

Reasoning

The appellant pleaded polio and mental disability but never supplied the medical report the Respondent requested by letter dated 18th October 2011. The medical assessment of 24th March 2017 and the Council's letter of 12th April 2017 both post-date retirement. The doctor's report stated there was no proper history of mental disability. In Byama the employee had been certified before retirement, so that case was distinguished.

p. 7
02

Whether the trial magistrate erred in applying Regulation 70 of the Public Service Commission Regulations, 2020 retrospectively

Holding

Yes - the 2020 Regulations, gazetted on 28th January 2020 (Legal Notice No. 3), were not in force when the appellant's retirement took effect in 2016; Regulation 82 revoked the 2005 Regulations, so the 2005 Regulations applied

Reasoning

The general rule against retrospectivity, per the Supreme Court in Samuel Kamau Macharia, means statutes affecting substantive rights are prospective unless expressly or by necessary implication retrospective. The court departed from Aminga (which applied the 2020 Regulations retrospectively), holding the lower court erred by following it; however, the appeal still failed on the merits.

p. 10
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Whether the appeal is merited

Holding

Only the ground on retrospective application of the 2020 Regulations merited; the appeal was nonetheless dismissed because the appellant was not registered as a person with disability at retirement

Reasoning

The court found the ground on the 2020 Regulations merited and the lower court's reliance on them erroneous, but on the merits the appellant was not certified or registered as a person living with disability at the time of retirement, so no discrimination claim could lie against the Respondent.

p. 11

Legal principles established

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  • On first appeal, the court must re-evaluate the evidence and reach its own conclusions while bearing in mind it neither saw nor heard the witnesses
  • Non-criminal legislation is prima facie prospective and retrospectivity is not presumed unless by express words or necessary implication
  • Registration of a person as a person living with disability after retirement creates no employer-employee relationship to sustain a discrimination claim against the former employer
  • A public officer claiming rights attached to disability must be medically assessed and provide the report to the employer during the tenure of service

Court orders

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  1. 1.The appeal is dismissed
  2. 2.No order as to costs (each party to bear own costs) taking into account the appellant's status as a person now living with mental disability
  3. 3.The file is marked as closed
On appeal from
Chief Magistrate's Court (Nairobi), MCELRC No. 1693 of 2019
MCELRC No. 1693 of 2019
Jurisdiction invoked
First appellate jurisdiction of the Employment and Labour Relations Court over an appeal from the magistrate's court (MCELRC No. 1693 of 2019)

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, "Kamau v Nairobi City County (Employment and Labour Relations Appeal E089 of 2023) [2025] KEELRC 1723 (KLR)", Case Analysis (2025). MCELRC Appeal from Nairobi CMELC No. 1693 of 2019 (memorandum of appeal dated 5th June 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1723/eng@2025-06-12

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