Court dashes civil servants hopes to serve beyond retirement age

Civil servants who have attained 60 years have a reason not to smile after the Employment and Labour Relations Court (ELRC) affirmed President William Ruto’s order that they should retire.

Justice Hellen Wasilwa in her judgment lifted the orders issued in July this year freezing the exercise, meaning all those affected will be going home to rest.

She said that Ruto cannot be faulted as he was simply restating the law on the retirement age.

Justice Wasilwa further said that the case filed by Caroline Wambui Mwangi could not be used to cushion civil servants who got extension of their contracts beyond the retirement age.

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“My understanding of this directive was to restate the law and there was therefore no addition or an indication that the President was usurping the role of other Government institutions or organs. proclamation by his Excellency the President, reiterated that the retirement age for public officers was 60 years and 65 years for persons with disabilities, Judges 70 years and with exception of Lecturers an Academicians whose retirement age range from 65 to 70 years. What was stated by the President is actually what is the law,” the Judge ruled.

The Judge was of the view that if anyone left government with an extended contract beyond 60 years, then he or she ought to argue their case separately.

“The petitioner submitted that there were staff who need to be reinstated to the service and especially those who were serving on post retirement contracts. Without going to therefore to the details of this prayer the directive by the President was “henceforth” which implies that the directive was to operate in the future and not retrospectively and does not therefore affect contracts of staff who are already on post retirement contracts. The issue of post retirement contracts is therefore a matter which cannot be exhaustively addressed in this petition unless it relates to individual contracts can only be addressed based on the said contract,” said Justice Wasilwa.

In her case, Wambui sued the Attorney General and Head of Public Service.

She also named Judicial Service Commission (JSC), Public Service Commission (PSC) and Parliamentary Service Commission as interested parties.

Wambui wanted the court to declare that the directive dated July 8, 2024 on mandatory retirement age for public officers who are serving on permanent and pensionable terms was illegal.

She asserted that Ruto was usurping the powers given to the independent commissions.

Wambui also accused the president of violating the doctrines of separation of powers and autonomy of arms of government.

She argued that capping of the retirement age by the president was unreasonable, procedurally unfair and  infringed on the right to fair administrative action.
The peitioner argued that no public participation was done before the directive.

Wambui also said that the President exposed taxpayers to severe financial setbacks from awards for damages occasioned by breach of contracts as there are civil servants who were older than 60 years but still serving under new contracts.

She urged the court to order that all those who were sent home following the directive should be reinstated.

Ruto issued the directive during his presidential address on July 5, 2024. The same was communicated to National Assembly Speaker Moses Wetang’ula, Chief Justice Martha Koome, Chairperson of the Council of Governors, Chairperson of the Public Service Commission, Chairperson of the Teachers Service Commission, Chairperson of National Police Service Commission and the Registrar of the Judiciary.

In their separate responses, the AG, PSC, JSC and August House argued that public officers are aware of the retirement age as the same is provided for by the law.
They stated that Wambui had not proved that the president’s statement amounted  to violation of rights.

They asserted that they would have complied with the law even without President’s directive.

The AG on the other hand said that Wambui had not shown any interest or rights she had suffered in the case.

The government’s legal advisor was of the view that it was impossible to reinstate unknown persons to the civil service as they had not been enjoined in the case.
In addition, the AG urged the court to lift orders issued on July 26 this year suspending the directive.

“ Presidential directive did not thus in any way alter the Constitutional, legal or regulatory provision in this regard and the same was actually a re-emphasis of the Government policy and cannot be read to raise any justiciable issue for determination by the court,” the AG argued.