Njaggah v Board of Directors of Water Services Regulatory Authority & 2 others (Civil Appeal E108 of 2024) [2025] KECA 1258 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that public officers with disabilities can only retire at 65 if they meet all regulatory conditions and get Public Service Commission approval beforehand.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the appeal was incompetent for failure to annex the decree to the record of appeal and for filing a supplementary record without leave
- 2.Whether the respondents could oppose the additional evidence on appeal when leave to adduce it had already been granted
- 3.Whether the appellant's request to retire at the age of 65 years as a person with disability was properly rejected by the 1st respondent
- 4.Whether the appellant qualified under Regulation 70 of the Public Service Commission Regulations, 2020 for retirement at 65 years
- 5.Whether the appellant had a legitimate expectation to retire at 65 years
- 6.Whether the appellant's constitutional rights were violated
Key legal issues
#Qualification for retirement at 65 years as a person with disability in public service
A public officer must satisfy all limbs of Regulation 70(2) conjunctively and obtain the Public Service Commission's approval under Regulation 70(4); the appellant, registered as a PWD only twenty days before retirement and without PSC approval, did not qualify.
The court read Regulation 70(2)(a), (b) and (c) conjunctively and held that the authority to extend retirement age lies with the Public Service Commission, not the employing body. The appellant obtained disability registration on 9th December 2022, days before retirement, never sought PSC approval, and obtained his tax exemption certificate after retirement, breaching Regulation 70(2)(c). The court did not fault the late acquisition of disability status itself, since the Act imposed no timeline, but held compliance with the Regulations was a precondition to any extension.
Effect of the fixed-term employment contract
The contract's Clause 6 (retirement on expiry of five years or attaining age 60, whichever is earlier) was binding, and courts cannot rewrite it or impose a 65-year retirement on an employee with a disability who has not complied with the Regulations.
Following established contract principles, the court held that parties are bound by the terms of their contracts absent coercion, fraud or undue influence, none of which was pleaded or proved. Clause 6 aligned the contract with PSC guidelines and statute. Even if the appellant had been entitled to the PWD benefit, his contract would still be subject to the agreed 5-year term; compliance with the regulations could only have extended the contract to the full five-year term, not to age 65.
Legitimate expectation
No legitimate expectation arose because the legal provisions the appellant relied on were in place when he signed the contract, and any expectation could only hold had the Public Service Commission given its concurrence.
The court pointed out that Circular MSPS/HRM/2/2/2/VOL.II (21) had been issued on 29th May 2012 and the Public Service Commission Regulations, 2020 dated 14th January 2020, both predating the 2020 contract, so there was no change in law. Relying on the Tunoi formulation, clear regulatory provisions requiring compliance override any contrary expectation; the PSC never concurred, defeating the claim.
Competency of the appeal for want of a decree
The objection failed because it was raised too late, through submissions, and without an application under Rule 86 of the Court of Appeal Rules, 2022 within the prescribed timeline.
The court held that Rule 86 of the Court of Appeal Rules, 2022 provides a specific procedure and timeline for seeking striking out of an appeal for incompetency. The 1st and 2nd respondents filed no such application, so the request to strike out through submissions had to fail. Further, the objection to additional evidence was unavailable because the Court had already granted leave on 30th January 2024 to adduce additional evidence through a supplementary record.
Violation of constitutional rights
The trial judge was correct to find that no violation of constitutional rights was established, since the reliefs could not issue where statutory preconditions were unmet.
The court found no merit in the appeal; the alleged unlawful, arbitrary and premature termination did not arise because the respondents lawfully retired the appellant upon attaining 60 years in accordance with his contract and the Regulations, the PSC having never approved any extension.
Legal principles established
#- The three limbs of Regulation 70(2) of the Public Service Commission Regulations, 2020 must be read conjunctively, and extension of a public officer's retirement age to 65 years on account of disability requires the approval of the Public Service Commission, not the employing public body.
- A public officer cannot demand retirement at 65 years absent compliance with the Public Service Commission Regulations, and courts will not rewrite a fixed-term employment contract entered into knowingly.
- The tax exemption certificate required by Regulation 70(2)(c) must be obtained prior to retirement; one obtained after the retirement date does not qualify an officer for disability-based retirement extension.
- An objection to the competency of an appeal for want of a decree on the record, raised too late and without an application under Rule 86 of the Court of Appeal Rules, 2022, must fail.
Court orders
#- 1.The appeal is dismissed in its entirety
- 2.Each party to bear own costs of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Employment and Labour Relations Court
- Not stated in the judgment (petition dated 15th December 2022)
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal Rules, 2022 (jurisdiction as a first appellate court re-evaluating the record)
Relief refused
#Extension of retirement age to 65 years / declaration that retirement date was 29th December 2027
The appellant did not satisfy Regulation 70(4) of the Public Service Commission Regulations, 2020, as the Public Service Commission never approved the extension
Reliefs for violation of constitutional rights
The conditions precedent for extension of the retirement age had not been met, so no contravention of rights was established
Costs
Each party to bear own costs of the appeal
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Additionally, it is imperative to appreciate that Regulation 70(2)(a), (b) & (c) should be read conjunctively and not disjunctively.
The authority to extend the retirement age, therefore, lies with the Public Service Commission and not with the public body that has employed the oficer.
We however, do not fault him, as the 1st and 2nd respondents appear to do, for acquiring his disability status late in the day.
Consequently, the appeal is dismissed in its entirety.
In the circumstances, we find that the appropriate order on costs is to order each party to bear own costs of the appeal. It is so ordered.
Issues in the judgment
#The judgment refers to Regulation 70(7)(b) for the definition of disability, but the quoted definition appears under the numbering of Regulation 70 in the extract, which lists only sub-regulations (1) to (4); the definitional sub-regulation numbering is internally inconsistent.
The judgment dates the signing of the employment contract inconsistently, describing it as dated 4th November 2020 in the narrative but as signed on 5th November 2020 in the legitimate-expectation discussion.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Omiyah v Kenya Electricity Generating Company PLC (Employment and Labour Relations Cause E1161 of 2025) [2025] KEELRC 3714 (KLR)[2025] KEELRC 3714 (KLR)17 Dec 2025applied
Cite this brief
#Cite this brief
Caselaw, "Njaggah v Board of Directors of Water Services Regulatory Authority & 2 others (Civil Appeal E108 of 2024) [2025] KECA 1258 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1258/eng@2025-07-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.