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ELRCDismissedPetition dated 3rd February, 2023

Kenya Universities Staff Union v Council of Jomo Kenyatta University of Agriculture and Technology & another (Petition E022 of 2023) [2023] KEELRC 1754 (KLR)

Employment and Labour Relations Court
29 June 2023
SRStella Rutto
2,774 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court confirmed that a CBA cannot extend the mandatory retirement age of 60 for public officers.

What this practically means

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Executive summary

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The Petitioner, a trade union, filed a petition dated 3rd February 2023 alleging that the Respondents discriminatorily retired some of its members - specifically those born between 1st January and 30th June - before expiry of the retirement period contemplated by Clause 19.1 of a Collective Bargaining Agreement executed on 11th April 2017, contrary to the CBA and employment law. It sought declarations, quashing orders against the retirement letters and directions that the Respondents adhere to the CBA. The Respondents, through the Acting Registrar, countered that the retirement notices followed the mandatory retirement age of 60 for public officers, per Public Service Commission and Salaries and Remuneration Commission directives, and that a CBA cannot extend the statutory retirement age. Justice Stella Rutto framed two issues: whether there was a constitutional violation, and whether the orders sought should issue. Examining the retirement notices, the Court found no member was retired before attaining age 60 and all received notices exceeding the stipulated 12 months; longer service past retirement age was an anomaly contrary to law, not discrimination. The Court held that the CBA cannot supersede statute and that members, as public officers, were bound by Section 80(1)(a) and (b) of the Public Service Commission Act. The real dispute was the interpretation of the CBA, which could not be litigated by way of a constitutional petition but should have been brought as a normal claim. The Petition was dismissed in its entirety with each party bearing its own costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether there is a case of constitutional violation
  2. 2.Whether the Court should grant the orders sought in the Petition

Key legal issues

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01

Whether the Respondents' retirement notices amounted to unconstitutional discrimination against union members born between 1st January and 30th June

Holding

No discrimination was established; none of the members was required to exit service before attaining age 60 and all received notices longer than the stipulated 12 months

Reasoning

The Court examined the retirement notices exhibited by the Petitioner and found no member exited service prior to reaching 60. Members who served longer past retirement age were an anomaly contrary to law, not unfair discrimination. Section 80(1)(a) and (b) of the Public Service Commission Act binds public officers to retire at 60 and forbids extension of service beyond that age. The CBA retirement clause cannot supersede statute.

p. 6
02

Whether a dispute over the interpretation of a CBA retirement clause can be litigated by way of a constitutional petition

Holding

No; an alleged breach of CBA terms must be brought by way of a normal claim, not a constitutional petition

Reasoning

The Court found the real dispute was the interpretation of the CBA executed on 11th April 2017. Since no constitutional violation was demonstrated, the interpretive dispute concerning Clause 19.1(d) could not be sustained as a petition and ought to have been prosecuted as an ordinary employment claim.

p. 7

Legal principles established

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  • A CBA cannot supersede the provisions of a statute and must give way where there is inconsistency
  • Public officers must retire upon attaining the mandatory retirement age, and such service cannot be extended by CBA negotiations

Court orders

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  1. 1.The Petition dated 3rd February, 2023 is dismissed in its entirety
  2. 2.Each party to bear its own costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

SR
majority

Wrote the judgment

Jurisdiction invoked
Constitution of Kenya, Chapter 4 (fundamental rights and freedoms) - constitutional petition in the Employment and Labour Relations Court

Relief refused

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Declarations that retirement of members was wrongful, unfair and unlawful; quashing of retirement letters; and directions to adhere to the CBA retirement clause

No discriminatory act or omission was established; retirement notices were issued at or beyond the mandatory retirement age and the CBA cannot override statute

p. 6

Costs

Each party bears its own costs

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

It is against this background, that I dismiss the Petition dated 3rd February, 2023 in its entirety with an order that each party bears its own costs.
p. 7Disposition
The CBA ought to be interpreted in line with the existing relevant statutes and where there is inconsistency, the CBA must give way.
p. 7Primacy of statute over CBA
Any alleged breach of the terms of the CBA ought to have been brought by way of a normal Claim.
p. 7Improper forum for CBA interpretation dispute

Issues in the judgment

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minor

The Petitioner is referred to generically and the case title does not appear in the excerpt; parties are identified only by role and through deponents

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kenya Universities Staff Union v Council of Jomo Kenyatta University of Agriculture and Technology & another (Petition E022 of 2023) [2023] KEELRC 1754 (KLR)", Case Analysis (2023). Petition dated 3rd February, 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1754/eng@2023-06-29

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