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

ii. A declaration that the Petitioner is entitled to payment of the pension after working for Government of Kenya for 27 years. iii. General damages iv. Costs of the petition to be awarded to the Petitioner v. Any other relief that the Honourable Court may deem just and fair to grant. Replying Afidavit 8. The Respondent filed a replying afidavit sworn to by Deputy Chief State Counsel in the ofice of the Attorney General who does not dispute the recruitment, deployment, promotion and resignation of the Petitioner from the civil service. 9. It is not in dispute that the Petitioner resigned while in the position of District Commissioner on 5th May 2017. 10. The Respondent states that the Petitioner upon resignation contested the position of Deputy Governor Busia County as an independent candidate but was not successful. 11. That on 25th September 2017, the Petitioner requested to be reinstated into service which request was declined by the Public Service Commission by a letter dated 6/12/2017. That the Petitioner had not attained the age of 50 years at the time of his resignation to enable him draw retirement benefits in line with service regulation. 17. That the decision by the Public Service Commission was conveyed to the Petitioner by a letter dated 30th July 2018. That in compliance with service regulation, the ofice processed refund of widows pension and children’s pension (WCPS) contribution and submitted the claim to the National Treasury for settlement by a letter dated 4/12/2020. 12. The Respondent relies on Regulation R28(1) of the Code of Regulation (Reviewed 1992) which provided that:“ an oficer who voluntarily resigns from the service of government or who is dismissed therefore forfeits all claims to the retirement benefits.” 13. That this provision was applicable at the time the Petitioner retired on 5th May 2017. 14. That the pension of public oficers at the time was non-contributory hence oficers did not have to contribute a part of their salary for them to secure their benefits thus the provisions of section 5(1) of the then Pensions Act stated:“ No oficer shall have an absolute right to compensation for past services or to pension, gratuity or other allowances.” 15. That the claim is statutory barred by dint of section 90 of the Employment Act, 2007 which provides:“ Notwithstanding the provisions of section 4(1) of the Limitation of Actions Act (Cap. 22), no civil action or proceedings based or arising out of this Act or a contract of service in general shall lie or be instituted unless it is commenced within three years next after the act, neglect or default complained or in the case of continuing injury or damage within twelve months next after the cessation thereof.” https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2729/eng@2025-10-02 2

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16. That the claim was initiated more than four (4) years after he was informed that he was not entitled to pension hence the claim is time barred. 17. That legislation does not apply retrospectively and so the Public Service Commission circular dated 21/9/2022 is misplaced and untenable. 18. That the petition is an abuse of court process and it be dismissed for lack of merit and for being time barred. Determination 19. The parties filed written submissions which the court has considered together with the Petitioner’s supporting afidavit and further afidavit and the replying afidavit by the Respondent. 20. The issues for determination are as follows:i. Whether the suit is time barred by dint of section 90 of the Employment Act, 2007. ii. Whether the Petitioner is entitled to payment of pension upon attainment of 10 years of service. 21. The petition was filed on 22nd September 2023. The Petitioner resigned from service on 30th May 2017. 22. According to the Petitioner he attained pensionable age of 50 years in the year 2019. The exact date of birth is not stated by the Respondent and the Petitioner in their pleadings. 23. The Petitioner states that refusal by the Respondent to authorize processing of his pension is a continuous injury to him within the meaning of section 90 of the Employment Act, 2007. 24. That the letter dated 6/12/2017 by PSC declined to have the Petitioner reinstated to his job and stated that the Petitioner had not attained 50 years of age at the time of his resignation to enable him draw retirement benefits in line with service regulations. 25. The date when pension became due and payable to the Petitioner was upon attaining 50 years of age which the Petitioner says happened in the year 2019. The petition was filed on 22/9/2023 which is more than three years from the date when the Petitioner attained 50 years of age. 26. The pension for the Petitioner under WCPS was processed by the Treasury for settlement vide a letter dated 4/12/2020. The Public Service Commission would have processed pension payable to the Petitioner at the same time being 4th December 2020 but did not. 27. The court finds that time with regard to processing for pension dues and owing to the Petitioner ought to have been processed simultaneously on the 4th December 2020 when Treasury submitted WCPS pension claim to Treasury with respect to the resignation of the Petitioner. 28. This petition was filed within 3 years from 4th December 2020. The court finds that the suit is not time barred by fact of the date when Public Service Commission selectively processed payment of WCPS but declined to process pension due to the Claimant based on his 27 years of service as claimed. 29. The next issue is whether the claim for pension has merit by dint of 27 years service and the Pensions Act which deem accrual of pension upon attainment of 10 years of service despite having not attained 50 years of age at the time of resignation. 30. Section 10A of the Pensions 1951 Act Cap 189 on deferment of pensions provides that; https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2729/eng@2025-10-02 3

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(1) (2) Where an oficer retires from the public service before attaining the age of fifty years, the payment of the pension benefits granted at the time of retirement shall be deferred until such oficer attains the age of fifty years, except in the following cases— (a) where the oficer retires before completion of ten years of service; (b) where an oficer retires under section 6(1)(e) or (h); or (c) where sections 17, 18, or 19 apply. The pension payable where any deferment of payment arises under subsection (1) shall be estimated based on projected pensionable emoluments from the date of retirement until the oficer attains the age of fifty years, according to such procedures as may be specified in regulations. [Act No. 4 of 1999, s. 56.] 31. Section 6(1)(e) relates to cases where on medical evidence, to the satisfaction of the President, the oficer shows he is incapable by reason of any infirmity of mind or body of discharging the duties of his ofice and that the infirmity is likely to be permanent, and so is not related to the case before court. Section 6(1) (h) applies to disciplined oficers and also does not relate to the case before court. Section 17 applies to pension to dependents on death of oficer in service or on retirement and also is inapplicable to the case. Section 18 is on gratuity where oficer dies in service or after retirement whilst section 19 is on pension to dependents when oficer is killed on duty. Neither of those sections applies in the case before court. 32. In answer to issue (ii) above, the Petitioner was not entitled to payment of pension upon attainment of 10 years of service but the pension is payable upon the Petitioner attaining the 50 years of age when accrued pension becomes due and payable. The Public Service Commission acknowledged in its letters dated 21/10/2022 and 16/12/2022 that Regulation 28(1) of the Code of Regulation (Reviewed 1992) which provides that oficers who voluntarily resigned from service of government or who is dismissed forfeits all claims of retirement benefits had been found to be unlawful and unconstitutional by Employment and Labour Relations Court in a judgment delivered on 6th April 2018 and directed all government organs to process pension for all afiected stafi. The Respondent herein took the misguided view that this declaration by the court could not operate retrospectively to the Petitioner who had resigned on 5th May 2017 before the said judgment was delivered. 33. The fact of the matter is that the pension anniversary for the Petitioner upon attaining 50 years was in the year 2019 after the said judgment of the court had been delivered. Accordingly, the judgment and the circulars dated 21/10/2022 and 16/12/2022 by Public Service Commission apply to the Petitioner and he is entitled to payment of pension for the 27 years’ service he had rendered to the Government of Kenya. 34. In the final analysis, judgment is entered for the Petitioner as against the Respondent as follows; i. Declaration that the Petitioner is entitled to payment of the pension after working for Government of Kenya for 27 years. ii. The Respondent is directed to cause the relevant ministry to initiate the process of payment of the accrued pension iii. Costs of the petition be awarded to the Petitioner DATED AT NAIROBI THIS 2ND DAY OF OCTOBER 2025. MATHEWS NDUMA https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2729/eng@2025-10-02 4

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JUDGE Appearance: Mr. Abubakar for Petitioner/Applicant Ms. Aswani for Respondent Mr. Kemboi – Court Assistant https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2729/eng@2025-10-02 5

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