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ELRCDismissedNot disclosed in the judgment

Kirundi v National Industrial Training Authority & another (Cause E411 of 2021) [2025] KEELRC 1651 (KLR)

Employment and Labour Relations Court
5 June 2025
2,436 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Employment Court upheld a Kenyan civil servant's early retirement and threw out his Kshs.35.5 million claim for back pay.

What this practically means

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Executive summary

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The claimant, formerly a centre manager at NITA Mombasa, was suspended on 31.05.2017 over alleged misappropriation of funds and procurement irregularities. After a disciplinary process, the 1st respondent's board resolved in January 2018 to allow him to exit by early retirement or resignation in lieu of dismissal. He resigned on 05.03.2018, then on 30.03.2018 revoked the resignation and opted for early retirement, which the 1st respondent accepted and paid his retirement benefits in full. On appeal, the Public Service Commission (2nd respondent) on 26.08.2020 allowed his appeal and reinstated him with full pay, but after NITA's review application under section 75(1)(a) of the PSC Act based on fresh material facts, the PSC on 13.10.2021 rescinded that reinstatement decision. The claimant sued seeking a declaration that the failure to implement the reinstatement was unlawful, a mandatory injunction to reinstate him with full pay, setting aside of the 13.10.2021 rescission, and alternatively terminal dues of Kshs.35,541,936.00, with costs and interest. The court framed the principal issue as whether the claimant's retirement was valid and lawful. It held that the parties enjoyed contractual autonomy to terminate the employment by agreement through early retirement; the claimant failed to establish coercion; the rescission of reinstatement was not shown to be unfair; and the claimant could not approbate and reprobate by relying on the rescinded reinstatement. The dues claim was found unjustified since he did not work during the claimed period and nothing attributable to the respondents prevented gainful engagement. The suit was dismissed in substance, with only the certificate of service ordered, and 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 the claimant's retirement from public service should stand as valid and lawful or it was unfair
  2. 2.Whether the 2nd respondent's decision of 13.10.2021 rescinding its earlier reinstatement decision of 26.08.2020 should be set aside
  3. 3.Whether the claimant is entitled to terminal dues of Kshs.35,541,936.00 for the period April 2018 to April 2025

Key legal issues

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01

Validity of the claimant's early retirement

Holding

The early retirement effective 30.03.2018, accepted by the 1st respondent with full payment of retirement benefits, was a valid agreement terminating the contract of service and was not vitiated by coercion

Reasoning

The claimant initially resigned, then changed his mind and requested early retirement which the 1st respondent accepted. He testified that he retired on 30.03.2018 and was paid full retirement benefits. The court found the parties enjoyed contractual autonomy to terminate by agreement and the claimant failed to establish coercion.

p. 5
02

Legality of the PSC's rescission of the reinstatement decision

Holding

The 2nd respondent's decision of 13.10.2021 rescinding the reinstatement decision of 26.08.2020 was not challenged as unfair and stood, since it was based on fresh material facts under section 75(1)(a) of the PSC Act

Reasoning

The PSC rescinded its reinstatement decision after a review application by NITA revealed fresh material facts not presented when the initial decision was made. The claimant did not demonstrate that the rescission was unfair. The letter of 13.12.2022 conclusively set out the circumstances of the retirement, confirming the computation of dues from 30.03.2018.

p. 5
03

Entitlement to terminal dues of Kshs.35,541,936.00

Holding

The claim was unjustified because the claimant did not work for the respondents over the claimed period and nothing attributable to them prevented his gainful engagement after retirement

Reasoning

The court found the claimant last worked on 30.03.2018, the date of retirement, and was paid full retirement benefits including three months' salary in lieu of notice. The reinstatement on which the dues claim rested had been rescinded. The only relief justified was the certificate of service under section 51 of the Employment Act, 2007.

p. 6

Legal principles established

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  • Parties to a contract of service are free to terminate it by agreement, including by early retirement, and are bound by such an agreement in the absence of coercion
  • A party cannot approbate and reprobate by relying on an erroneous reinstatement decision while simultaneously attacking the decision rescinding it

Court orders

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  1. 1.The 1st respondent to deliver the certificate of service by 01.07.2025
  2. 2.Each party to bear own costs of the suit

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Court Act and Employment Act, 2007; claim on enforcement of Public Service Commission decisions under the Public Service Commission Act, 2017

Relief refused

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Declaration that the respondents' refusal to implement the PSC reinstatement decision of 26.08.2020 was illegal, unfair and void

The retirement has not been vitiated; the 2nd respondent validly rescinded the reinstatement decision and the claimant's retirement was upheld

p. 5

Mandatory injunction compelling reinstatement as centre manager with full pay

The rescinded reinstatement decision is not available and the claimant retired with full payment of retirement benefits

p. 5

Setting aside of the 2nd respondent's decision dated 13.10.2021 rescinding the reinstatement decision

The claimant has not shown any basis to attack the valid decisions of the 2nd respondent which upheld his retirement

p. 5

Terminal dues of Kshs.35,541,936.00

The claimant did not work over the period claimed and nothing attributable to the respondents stopped him from gainful engagement after retirement on 30.03.2018

p. 5

Costs

Each party to bear own costs of the suit

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.

In conclusion the suit is hereby determined with orders as follows: a. The 1st respondent to deliver the certificate of service by 01.07.2025. b. Each party to bear own costs of the suit.
p. 6Final orders - certificate of service and costs
The Court returns that the parties are fully bound by the agreement to end the contract of service by early retirement of the claimant.
p. 5Binding effect of agreed termination by early retirement
The Court finds that the claimant has not established coercion
p. 5Absence of coercion in the retirement decision
The Court considers that the claimant cannot be allowed to approbate and reprobate concurrently, by relying on 2nd respondent's erroneous decision to reinstate him and then without justification, attacking the decision by the 2nd respondent rescinding the reinstatement decision.
p. 5Approbate and reprobate doctrine
The certificate of service is due per section 51 of the Employment Act, 2007.
p. 6Statutory entitlement to certificate of service

Issues in the judgment

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minor

The judgment inconsistently dates the retirement/last working day as both 30.03.2018 and 30.03.3018 in different passages

minor

The case number of the cause is not disclosed anywhere in the judgment

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, "Kirundi v National Industrial Training Authority & another (Cause E411 of 2021) [2025] KEELRC 1651 (KLR)", Case Analysis (2025). Not disclosed in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1651/eng@2025-06-05

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