In Summary
  • Mr George Kuria, who had sued TSC, was supposed to have retired on September 1, 2008, having attained 55 years of age.

  • Upon attaining 55 years, Mr Kuria was informed by TSC through a letter dated November 22, 2008, that he was due for compulsory retirement and his last day of service would be April 30, 2009.

  • The judge said employees should note that positions of public offices such as the one held by Ms Mwari have fixed dates of exit or retirement which is pegged on date of birth.

The challenge faced by the Teachers Service Commission (TSC) over the retirement age of teachers emanates from a 2009 directive from the government changing the retirement age from 55 to 60 years.

Following the directive, some teachers worked until they attained 60 years yet they were not eligible, due to system errors. This prompted some of those affected to contest the calculation of their pension claims up to the age of 55.

The court, however, found that TSC had not violated any law.

While arguing the case before the Labour Court, TSC explained that before 2007, it didn’t have its own payroll and therefore was using the Government Information Technology Systems (GITS) which contained many errors in regard to the information of teachers like the dates of birth and dates of appointment.

However, after 2007, the commission started “cleaning” the GITS in order to obtain an error-free system to be used for the Integrated Payroll Personal Data (IPPD) system which had been acquired in 2006.

The said cleaning of errors was a gradual process from 2007 to 2010.

SUED TSC

Mr George Kuria, who had sued TSC, was supposed to have retired on September 1, 2008, having attained 55 years of age.

However, on March 20, 2009, TSC among other government entities received a circular from the Secretary to the Cabinet and Head of Public Service directing that with effect from April 1, 2009, all public servants would retire upon attaining 60 years.

The circular further directed public servants who had not attained 55 years as at March 5, 2009, to continue to serve till they attained 60 years if they wished.

“Mr Kuria was among the teachers whose personal information had errors, specifically the date of birth, and when the payroll was cleaned in 2010 it was established that 139 teachers including him, had already attained the age of 55 years by 2008 and ought to have retired at the age of 55 years,” TSC told the court.

TSC wrote to the Principal Administrative Secretary, Directorate of Public Service Management (DPSM) a report dated March 6, 2014, explaining the circumstances under which the 139 teachers including Mr Kuria were retained in employment even though they had attained 55 years in 2008 before the extension of the retirement age for civil servants to 60 years, and sought authority for the extension of service of the said teachers in order to facilitate the pension payment.

PENSION

The commission further wrote to the Principal Administrative Secretary, DPSM, on May 9, 2014, confirming that the 139 teachers had worked satisfactorily up to the age of 60 years because by the time the payroll was cleaned and their actual dates of birth were established, the effect of the circular allowing public servants to work up to the age of 60 years had already taken effect.

The commission received a letter dated June 9, 2014, from the Ministry of Devolution and Planning directing that the 139 teachers be paid pension up to the age of 55 years and the period exceeding the mandatory retirement age (55) be deemed as period served under contract appointment and further advised that they will be eligible for service gratuity for the extended period of five years.

Consequently, TSC was willing to process the pension claims up to the age of 55 years for Mr Kuria and pay service gratuity at the rate of 31 per cent of the basic salary per annum for the five years he worked, including his last day of service.

Upon attaining 55 years, Mr Kuria was informed by TSC through a letter dated November 22, 2008, that he was due for compulsory retirement and his last day of service would be April 30, 2009.

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