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ELRCPartially AllowedNot stated in the judgment· [2025] KEELRC 2729 (KLR)

Abwaku v Attorney General (Employment and Labour Relations Petition E181 of 2023) [2025] KEELRC 2729 (KLR)

Employment and Labour Relations Court
2 October 2025
MNMathews Nduma
1,760 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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A former civil servant who resigned after 27 years won his pension, because Kenyan law treats deferred pensions as payable at age 50.

What this practically means

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Executive summary

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The Petitioner, a former District Officer who served the Government of Kenya for 27 years and rose to District Commissioner, resigned from the civil service in 2017 to contest an elective post. Having attained the pensionable age of 50 in 2019, he petitioned the Employment and Labour Relations Court seeking declarations that the Respondent's refusal to pay his pension violated his right to fair labour practices, a declaration of entitlement to pension, general damages and costs. The Respondent, through a replying affidavit sworn by a Deputy Chief State Counsel, did not dispute the recruitment, promotion or resignation, but relied on Regulation 28(1) of the Code of Regulations (Reviewed 1992), which forfeited retirement benefits for officers who voluntarily resigned, and on section 5(1) of the then Pensions Act. It further argued that the claim was time barred under section 90 of the Employment Act, 2007, and that the Public Service Commission circulars of 2022 could not apply retrospectively. The court framed two issues: limitation and entitlement to pension. On limitation, it held the cause of action accrued on 4th December 2020 when Treasury processed the WCPS refund and pension should have been processed simultaneously; the petition filed on 22nd September 2023 was therefore within three years. On merits, applying section 10A of the Pensions Act, the court held pension accrued at age 50, which fell after the 6th April 2018 ELRC judgment declaring Regulation 28(1) unconstitutional, and the 2022 circulars applied to the Petitioner. Judgment was entered for the Petitioner with a declaration of entitlement to pension for 27 years' service, a direction to the Respondent to initiate payment, and costs. General damages and the fair-labour-practices declaration were not granted in the final orders.

Key legal issues

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01

Whether the claim is time barred under section 90 of the Employment Act, 2007

Holding

The suit is not time barred because the pension ought to have been processed on 4th December 2020, and the petition filed on 22nd September 2023 is within three years of that date

Reasoning

The court held that although the Petitioner attained age 50 in 2019, the Public Service Commission selectively processed only the WCPS refund on 4/12/2020 and declined to process his pension. Time under section 90 therefore began to run from 4/12/2020, when simultaneous processing was due. Filing on 22/9/2023 fell within three years, so the limitation defence failed.

p. 3
02

Whether the Petitioner is entitled to pension despite Regulation 28(1) forfeiture for voluntary resignation

Holding

Yes. Regulation 28(1) had been declared unlawful and unconstitutional by the ELRC on 6th April 2018, and PSC circulars of 21/10/2022 and 16/12/2022 directed processing of pension for affected staff; these apply to the Petitioner

Reasoning

Under section 10A of the Pensions Act, pension deferred on early retirement is payable at age 50. The Petitioner's pension anniversary fell in 2019, after the 2018 ELRC judgment invalidating Regulation 28(1). The Respondent's argument that the declaration could not operate retrospectively was rejected as misguided; the Petitioner's 27 years of service entitled him to pension.

p. 4

Legal principles established

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  • Where pension for an officer who resigned before attaining 50 years was deferred under section 10A of the Pensions Act, pension becomes due and payable upon attaining 50 years, not upon completion of 10 years of service
  • A declaration striking down Regulation 28(1) forfeiture of pension for voluntary resignation applies to officers whose pension anniversary (attainment of age 50) occurred after that judgment was delivered, even if they resigned before it

Court orders

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  1. 1.Declaration that the Petitioner is entitled to payment of the pension after working for Government of Kenya for 27 years
  2. 2.The Respondent is directed to cause the relevant ministry to initiate the process of payment of the accrued pension
  3. 3.Costs of the petition be awarded to the Petitioner
Jurisdiction invoked
Not expressly stated; original petition jurisdiction of the Employment and Labour Relations Court invoked via the petition and reliefs on fair labour practices

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, "Abwaku v Attorney General (Employment and Labour Relations Petition E181 of 2023) [2025] KEELRC 2729 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2729/eng@2025-10-02

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