Koimur v Egerton University (Employment and Labour Relations Cause E002 of 2024) [2024] KEELRC 2818 (KLR)
The bottom line
#The Employment Court confirmed that your signed contract and applicable CBA fix your retirement age, and pension claims belong with the pension scheme, not the employer.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.What were the terms of engagement of the claimant at the time of retirement?
- 2.Whether the retirement was done within the law.
- 3.What remedies the claimant is entitled to?
Key legal issues
#Terms of engagement and applicable retirement age
The claimant's terms of engagement, including the KUSU CBA, provided for retirement at 60 years; she admitted retiring at 60 per the CBA.
The court reviewed the claimant's employment history, her membership of KUSU (not UASU), her payslip subscriptions, and her admissions in cross-examination that as a public servant she knew she would retire at 60. Mr Miano's retirement at 65 was explained by his transfer to teaching staff status upon his own request. The court held the contract and CBA clearly fixed her retirement age at 60.
Whether retirement at 60 was lawful / discriminatory
No illegality or discrimination was established; retirement at 60 accorded with the contract and CBA.
The court found the claimant's comparator argument (Mr Miano retired at 65) did not establish discrimination, since Miano had become teaching staff in the Faculty of Health Sciences on his own request and teaching staff retire at 65-70 depending on grade. The claimant had her own signed contract, and a change to it required mutual agreement under section 10(5) of the Employment Act.
Entitlement to pension dues
The pension claim should be directed to the independent pension scheme, not the respondent.
The claimant admitted membership of a pension scheme independent of the respondent and admitted she had not submitted her claim to the scheme, nor produced any letter from the scheme declining payment. The court therefore found the claim against the respondent unfounded despite the respondent's admission in its defence of owing Kshs 2,322,105 to be paid by the Government of Kenya.
Legal principles established
#- An employee is bound by the terms of their own individual contract, and the retirement age applicable is that fixed by the contract and the applicable CBA, not by the treatment of other employees transferred to different departments.
- A transfer of a fellow employee to a teaching department on request, changing his retirement age, does not amount to discrimination against an employee who remained in her own department under her original contract.
Court orders
#- 1.The entire claim is dismissed
- 2.Costs of the suit awarded to the Respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment and labour relations disputes (Employment Act; Constitution Articles 27, 28, 41, 42, 23 invoked in the claim)
Relief refused
#Declaration of contravention of Articles 27, 28 and 42 of the Constitution and general damages under Article 23
Claimant did not establish what rights were breached; retirement at 60 was per her contract and CBA
Lost earnings of Kshs 12,347,856 for the 5 years to retirement at 65
Retirement at 60 was procedural and lawful per the contract and KUSU CBA
Pension dues of Kshs 2,322,105 with interest
Claimant is a member of an independent pension scheme and had not submitted her claim to the scheme; claim should be directed to the scheme itself
Costs
Claim dismissed with costs to the Respondent
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.
Having found as above, therefore, it is my finding that the entire claim is unfounded. It fails accordingly and is dismissed with costs.
An employee is bound by their own individual contract and the employer can only change the said contact with convenience with the employee on mutual agreement as provided for under section 10(5) of the Employment Act 2007
The fact that another employee had been moved to another faculty on request does not imply that even the claimant was to be transferred to the same department.
It therefore follows that there was no illegality committed by the respondent in retiring the claimant at 60 years.
The claim then that the respondent pays her pension is unfounded as it should be directed to the pension scheme itself.
Issues in the judgment
#The defence paragraph 9 and RW-1's cross-examination describe the KUSU CBA retirement age inconsistently with the claimant's pleaded position (60 per CBA but 65 claimed), and RW-1 is recorded as saying the KUSU constitution provides for retirement at 60 while the claimant's pleaded case is that KUSU CBA retires her cadre at 65 - an unresolved evidentiary tension the judgment does not expressly reconcile.
The judgment contains typographical inconsistencies in the claimed pension amount (Kshs 2,322,105 in the claim versus Kshs 2,332,105 in the respondent's submissions).
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.
- Thiongo v Egerton University (Employment and Labour Relations Cause E014 of 2024) [2025] KEELRC 1582 (KLR)[2025] KEELRC 1582 (KLR)30 May 2025
Cite this brief
#Cite this brief
Caselaw, "Koimur v Egerton University (Employment and Labour Relations Cause E002 of 2024) [2024] KEELRC 2818 (KLR)", Case Analysis (2024). Memorandum of Claim dated 23rd January, 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2818/eng@2024-11-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.