https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2299

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT ELDORET** **PETITION NO. E017 OF 2025** *(Before Hon. Lady Justice Maureen Onyango)* **IN THE MATTER OF THE CONTRAVENTION OF THE CONSTITUTION IN ARTICLES 2,3 & 10 OF THE CONSTITUTION OF KENYA,2010** **AND IN THE MATTER OF CONTRAVENTION OF RIGHTS AND FUNDAMENTAL FREEDOMS IN ARTICLES 20,21,22,23,27,28,41,47,48 & 162(2)(A) OF THE CONSTITUTION OF KENYA, 2010 AND IN THE MATTER OF THE CONSTITUTION OF KENYA(PROTECTION OF FUNDAMENTAL RIGHTS AND FREEDOMS) PRACTICE AND PROCEDURE RULES,2013** **AND** **IN THE MATTER OF SECTIONS 4,12 AND 20 OF THE EMPLOYMENYT AND LABOUR RELATIONS COURT ACT** **AND** **IN THE MATTER OF THE LABOUR RELATIONS ACT, CAP 233** **AND IN THE MATTER OF THE EMPLOYMENT ACT,2007** **BETWEEN** **KENYA UNIVERSITIES STAFF UNION** **UNIVERSITY OF ELDORET BRANCH…………………PETITIONER** **VERSUS** **UNIVERSITY OF ELDORET……………………..….1ST RESPONDENT THE COUNCIL, UNIVERSITY OF ELDORET……2ND RESPONDENT** **THE VICE CHANCELLOR,** **UNIVERITY OF ELDORET…………………………..3RD RESPONDENT** **JUDGMENT** **Introduction** 1. The Petitioner is a trade union duly registered under the Labour Relations Act, 2007 2. The 1st Respondent is a Public University established under the Universities Act, No. 42 of 2012 responsible for all employment, human resource, administrative, and governance decisions affecting its teaching and non-teaching staff. 3. The 2nd Respondent, is the governing body of the 1st Respondent, established under the Charter issued pursuant to Section 20 of the Universities Act, 2012. It is described in the petition as the apex organ charged with the University's governance, policy direction and human resource management, including setting terms and conditions of service and overseeing recruitment, promotions and disciplinary processes. 4. The 3rd Respondent is the administrative and academic head of the 1st Respondent, appointed under the Universities Act and is responsible for the day-to-day management of the University. 5. The Petitioner filed the Petition dated 26th January 2026 against the Respondents invoking various Articles of the[Constitution](http://resolver.caselaw.kenyalaw.org/resolver/akn/ke/act/2010/constitution), sections of Fair Administrative Action Act and Employment and Labour Relations Court Act. It seeks the following reliefs: 6. A declaration be issued that the Respondents have violated the provisions of Articles 2, 3(1), 41, 47, and 232 of the Constitution of Kenya 2010, by attempting to unilaterally enforce a retirement age of sixty (60) years contrary to the registered CBA and the University’s Terms of Service. 7. A declaration be issued that any directive, notice, or policy issued by the Respondents purporting to reduce the retirement age of the Petitioner's members from sixty-five (65) years to sixty (60) years is null and void, having no legal effect. 8. A declaration be issued that the Respondents are bound by the provisions of the registered Collective Bargaining Agreement (CBA) 2012/2013 and the University's Terms of Service, including the provision on the mandatory retirement age of sixty-five (65) years and cannot unilaterally amend or override these terms. 9. An order of mandamus be issued compelling the Respondents to recognize and maintain the retirement age of sixty-five (65) years for all unionized employees as stipulated under the registered CBA and University Terms of Service. 10. An order be issued directing the Respondents to withdraw, rescind and set aside any retirement notices, circulars, or administrative actions issued in contravention of the CBA 2012/2013 and the University's Terms of Service regarding retirement age. 11. A permanent injunction be issued restraining the Respondents, their officers, agents, servants, employees, or any persons acting under their direction or authority, from enforcing, implementing, or giving effect to any retirement notices, orders, or directives including but not limited to Government Circular Ref. No. OP/CAB.9/1 dated 16th June 2025-that seek to compulsorily retire any unionized employee of the 1st Respondent before attaining the age of sixty-five (65) years. 12. A permanent injunction be issued restraining the Respondents, their officers, agents, servants, employees, or any persons acting under their direction or authority, from taking any action that effects the retirement of unionized employees of the 1st Respondent in contravention of the registered Collective Bargaining Agreement (CBA) 2012/2013 and the University’s Terms of Service, which expressly provide for a retirement age of sixty-five (65) years. 13. An order be issued directing the 1st Respondent to withdraw, rescind, and set aside any notices or administrative actions issued in contravention of the CBA and University Terms of Service concerning retirement age, ensuring that all affected employees’ rights to retire at sixty-five (65) years are fully restored. 14. The costs of this Petition be awarded to the Petitioner. 15. The Petition is supported by the affidavit of Robinson K. Korir, the Branch Secretary of the Petitioner herein sworn on 15th December 2025. 16. The Respondents opposed the Petition vide the Replying Affidavit sworn on 6th February 2026 by Professor Kimutai Kimeli, the Registrar in charge of Administration. **The Petitioner’s case** 1. The Petitioner avers that it is the duly recognized trade union representing the unionisable employees of the 1st Respondent. It contends that it engaged in collective bargaining negotiations with the 2nd Respondent culminating in the execution of a local Collective Bargaining Agreement. 2. The Petitioner states that the 2012/2013 CBA was duly executed on 22nd November 2013 and subsequently registered in accordance with the provisions of the Labour Relations Act. According to the Petitioner, by virtue of such registration, the CBA acquired binding legal force and became an integral part of the terms and conditions of service governing all unionisable employees of the 1st Respondent. 3. The Petitioner further avers that the 2012/2013 CBA contains, inter alia, Clause 22.1, which expressly provides that the compulsory retirement age for all unionisable employees of the 1st Respondent shall be sixty-five (65) years. 4. According to the Petitioner, Clause 22.1 is couched in clear, mandatory, and unequivocal terms, leaving no room for administrative discretion, interpretive uncertainty, or unilateral variation by either party to the Collective Bargaining Agreement. It provides: - ***22.1 Retirement*** ***(a)*** *The compulsory retirement age shall be sixty-five (65) years* 1. The Petitioner avers that the deliberate use of the mandatory term **“shall”** in Clause 22.1 unequivocally reflects the intention of the parties to prescribe the retirement age as a mandatory, binding, and non-derogable term of the Collective Bargaining Agreement. According to the Petitioner, the provision was consciously negotiated at arm's length and incorporated as a fundamental and inseparable term of the unionisable employees' conditions of service. 2. The Petitioner further avers that, in addition to the provisions of the 2012/2013 CBA, the 1st Respondent’s Terms of Service for Academic, Senior Library and Administrative Staff similarly affirm and reinforce the applicable retirement regime. In particular, Clause 27(b) provides as follows: **27(b)** *The compulsory retirement age for teaching staff shall be seventy (70) years and for non-teaching staff sixty-five (65) years.* 1. The Petitioner contends that the Terms of Service are wholly consistent with the 2012/2013 CBA, thereby establishing a uniform institutional retirement framework under which unionisable non-teaching employees represented by the Petitioner are required to retire upon attaining the age of sixty-five (65) years. 2. The Petitioner further avers that the 1st Respondent has, over the years, consistently implemented the retirement age of sixty-five (65) years without dispute or deviation. According to the Petitioner, this longstanding practice is demonstrated by the payslips issued to unionisable employees, which, as at November 2025, reflected retirement countdowns based on a retirement age of sixty-five (65) years, thereby evidencing the 1st Respondent's continued recognition and implementation of the retirement provisions contained in the 2012/2013 CBA. 3. The Petitioner further asserts that numerous unionisable employees have retired upon attaining the age of sixty-five (65) years in accordance with the applicable contractual and statutory framework and that the retirement age of sixty-five (65) years has, crystallized not only as an express contractual term but also as a longstanding and consistent labour practice embedded in the administrative operations of the 1st Respondent. 4. The Petitioner therefore maintains that, in the absence of any lawful variation, amendment, or replacement of the 2012/2013 CBA in accordance with the procedures prescribed under the Labour Relations Act, the compulsory retirement age applicable to unionisable employees remains sixty-five (65) years. 5. The Petitioner avers that, notwithstanding the binding provisions of the 2012/2013 CBA, the 2nd Respondent, acting on behalf of the 1st Respondent, issued an internal memorandum dated 23rd June 2025 (Ref. UOE/A/VC/VC/001), notifying employees of the 1st Respondent of its intention to enforce a mandatory retirement age of sixty (60) years for public officers, including the Petitioner's unionisable members. 6. The Petitioner further avers that the impugned memorandum was founded upon Government Circular Ref. No. OP/CAB.9/1 dated 16th June 2025, which was subsequently noted and adopted by the 2nd Respondent during its 116th Special Meeting held on 23rd June 2025. 7. According to the Petitioner, the effect of the said Government Circular is to impose a mandatory retirement age of sixty (60) years upon public officers, including the unionisable employees represented by the Petitioner, thereby directly conflicting with the retirement provisions contained in the binding 2012/2013 CBA and the 1st Respondent’s Terms of Service. 8. The Petitioner avers that aggrieved by what it considered to be a unilateral and unlawful attempt to alter the agreed retirement age, through its Branch Secretary, Mr. Robinson Korir, it addressed a letter dated 30th June 2025 to the 3rd Respondent objecting to the proposed implementation of the memorandum. 9. The Petitioner contends that in the said letter, it challenged the legality, propriety and enforceability of the proposed reduction of the retirement age, contending that the Respondents could not lawfully rely on the Government Circular to vary or override the retirement provisions contained in the binding 2012/2013 Collective Bargaining Agreement. 10. The Petitioner avers that it reiterated that the retirement age constitutes a fundamental term and condition of service, painstakingly negotiated between the parties and protected under both the Labour Relations Act and Article 41 of the Constitution. The Petitioner maintained that any attempt to unilaterally reduce the retirement age to sixty (60) years would amount to an unlawful, unfair, and unconstitutional variation of the terms of employment. 11. The Petitioner avers that, notwithstanding its unequivocal objection and despite the continued validity and binding force of the 2012/2013 CBA as at 2nd December 2025, the Respondents proceeded to issue retirement notices based on the impugned Government Circular. 12. According to the Petitioner, the retirement notices sought to enforce a compulsory retirement age of sixty (60) years, thereby acting in direct contravention of the 2012/2013 CBA, the 1st Respondent's Terms of Service and the statutory protection accorded to registered collective bargaining agreements under the Labour Relations Act. 13. The Petitioner further avers that, on 2nd December 2025, the Respondents issued retirement notices to, among others, the following unionisable employees, requiring them to retire upon attaining the age of sixty (60) years notwithstanding their alleged contractual, collective, and statutory entitlement to retire at sixty-five (65) years: 14. Rebecca S. Makori (aged 60 years) – Secretary 15. Margaret N. Oduor (aged 61 years) – Nursing Officer 16. Linet N. Alfayo (aged 62 years) – Secretary 17. Henry Z Ongwae (aged 60 years) - Medical Laboratory Technologist 18. Kimosop Chepkwony (aged 62 years) - Public Health Officer 19. Costa Jeptoo (aged 60 years) - Secretary 20. David Thuo (aged 61 years) - Head Butcher Man 21. William Kemboi (aged 60 years) - Senior Accountant 22. Barnabas 0. Agar (aged 62 years) - Senior Accountant 23. Winnie Kottut (aged 63 years) - Senior Student Counsellor 24. John Ngetich (aged 63 years) – Accountant 25. The Petitioner asserts that upon learning of the issuance of the retirement notices on 3rd December 2025, its Branch Secretary promptly addressed a further demand letter dated 3rd December 2025 to the 2nd Respondent, formally protesting the impugned action and demanding the immediate withdrawal of the retirement notices in compliance with the applicable Collective Bargaining Agreement and the 1st Respondent’s Terms of Service. 26. The Petitioner contends that, despite receipt of the said demand and objection, the 2nd and 3rd Respondents failed to withdraw the impugned retirement notices and instead persisted in their intended course of action, thereby precipitating the institution of the present Petition to forestall the alleged violation of the Petitioner's members' constitutional and contractual rights. 27. The Petitioner further avers that the Respondents sought to justify the impugned retirement notices by relying on the National Collective Bargaining Agreement for the 2021–2025 cycle executed on 23rd November 2024 between the Inter-Public Universities Councils Consultative Forum (IPUCCF) of the Federation of Kenya Employers (FKE) and the Kenya Universities Staff Union (KUSU). 28. According to the Petitioner, Clause 4 of the said National CBA provides that the retirement age of members of the Kenya Universities Staff Union (KUSU) shall be: 29. *Sixty-five (65) years for members of KUSU working in teaching laboratories, teaching workshops, and libraries* 30. *Sixty-five (65) years for members of KUSU who are persons living with disabilities* 31. *Sixty (60) years for all other members of KUSU* 32. *The revised retirement age shall take effect from the date of execution of the Agreement.* 33. The Petitioner avers that the Respondents relied on the foregoing provisions of the National CBA together with Government Circular Ref. No. OP/CAB.9/1 to justify the impugned retirement notices and to impose a blanket retirement age of sixty (60) years upon unionisable employees, in disregard of the subsisting 2012/2013 CBA. The Petitioner contends that such action was unilateral, arbitrary, unlawful, and contrary to the negotiated terms and conditions of service. 34. The Petitioner further contends that, even assuming, without conceding, that the 2021–2025 National CBA and Government Circular Ref. No. OP/CAB.9/1 were lawfully applicable to the determination of the retirement age, the 2012/2013 CBA remains the more favourable instrument within the meaning of section 26 of the Employment Act and therefore prevails by operation of law. 35. The Petitioner maintains that the 2012/2013 CBA remains valid, binding, and fully operative, having neither been revoked, amended, nor lawfully displaced. It therefore contends that the impugned retirement notices, having been issued in derogation of the said CBA, are unlawful, null and void, and constitute a violation of the right to fair labour practices guaranteed under Article 41 of the Constitution. 36. The Petitioner further avers that the Respondents' unilateral departure from the negotiated retirement framework, undertaken without consultation or agreement, has occasioned substantial prejudice to its members by disrupting established employment relations, undermining institutional certainty, and exposing employees to significant professional, financial, and personal anxiety. 37. The Petitioner further contends that the Respondents' actions have exposed its members to considerable financial prejudice. It avers that, for decades, employees structured their personal, financial, and professional affairs on the legitimate understanding that the applicable retirement age was sixty-five (65) years, and consequently entered into long-term financial commitments, including mortgages, personal loans, and development financing, in reliance upon that retirement framework. 38. The Petitioner therefore asserts that the Respondents' unilateral attempt to reduce the retirement age from sixty-five (65) years to sixty (60) years, contrary to the subsisting Collective Bargaining Agreement, the 1st Respondent's Terms of Service, applicable statutory provisions, and longstanding institutional practice, has exposed its members to severe and unforeseen financial hardship, undermined their economic security, disrupted their livelihoods, and occasioned considerable uncertainty and psychological distress. 39. The Petitioner avers that unless restrained by orders of this Court, the Respondents will continue to enforce the impugned retirement age, thereby causing irreparable harm to its members through the premature loss of employment, disruption of their financial security, and frustration of the legitimate expectations developed over many years of service. **The Respondent’s case** 1. In response to the Petition, the Respondents admit having issued retirement notices to certain unionisable employees requiring them to retire upon attaining the age of sixty (60) years. They, however, deny that the notices were issued in contravention of the 2012/2013 Collective Bargaining Agreement or the University's Terms of Service. 2. The Respondents categorically deny that the impugned retirement notices were unlawful, unconstitutional, arbitrary, or in breach of the applicable Collective Bargaining Agreement. They contend that the notices were issued in strict compliance with the applicable law, Government policy, and the University's approved Human Resource instruments. 3. The Respondents aver that the mandatory retirement age in the Public Service and State Corporations, including public universities, is sixty (60) years, unless an extension is expressly granted in accordance with Government policy and approved by the relevant authorities. 4. The Respondents further state that the University of Eldoret is a public university established under the Universities Act and is therefore bound by Government circulars, directives, and policies. They contend that the impugned retirement notices were issued pursuant to Government Circular Ref. No. OP/CAB.9/1 dated 16th June 2025. 5. According to the Respondents, all members of staff were notified of the Government Circular through an internal memorandum Ref. No. UoE/A/VC/VC/001 dated 23rd June 2025. 6. The Respondents further contend that the retirement age of sixty-five (65) years relied upon by the Petitioner was neither absolute nor universally applicable and, in any event, could not override binding Government policy applicable to public institutions. 7. The Respondents acknowledge that the 2012/2013 Collective Bargaining Agreement was executed on 22nd November 2013 between the University of Eldoret Council, as employer, and the Kenya Universities Staff Union (KUSU), and that the Agreement was duly registered. 8. They nevertheless aver that the 2012/2013 Collective Bargaining Agreement has either expired, been overtaken by subsequent events, or is subject to prevailing Government policy, and therefore cannot be enforced in a manner inconsistent with the national retirement policy. 9. The Respondents further contend that any provision in the 2012/2013 Collective Bargaining Agreement purporting to prescribe a retirement age of sixty-five (65) years without Government approval would be unlawful, unenforceable, and incapable of binding the Respondents. 10. The Respondents state that, at a Special Meeting of the University Management Board held on 9th October 2025, it was resolved that employees affected by the Government Circular be issued with one year's notice of their impending retirement in accordance with the applicable Terms of Service. 11. The Respondents further aver that the affected employees were duly served with retirement notices in accordance with established human resource procedures and were afforded sufficient notice to prepare for their exit from service. 12. It is further averred that, during its 57th Ordinary Meeting held on 10th November 2025, the University Council considered Council Paper No. HRC133 relating to the implementation of the Government Circular on retirement age and approved the issuance of retirement notices to the affected employees. 13. The Respondents state that the University Council is the supreme governing organ of the University, charged with overall policy formulation, strategic oversight, and institutional governance. 14. The Respondents deny having acted arbitrarily or in bad faith and maintain that they merely exercised their lawful administrative mandate by implementing Government Circular Ref. No. OP/CAB.9/1. 15. The Respondents further contend that the doctrine of legitimate expectation is inapplicable where the expectation asserted is inconsistent with statute, Government policy, or the public interest. 16. According to the Respondents, the Petition is intended to unlawfully retain employees in service beyond the lawful retirement age, thereby exposing the University to audit queries, administrative sanctions, and potential legal liability. 17. The Respondents further contend that the Petition discloses no constitutional violation and merely raises an ordinary labour dispute. 18. They therefore assert that both the Petition and the accompanying application are speculative, misconceived, and intended to obstruct the lawful implementation of institutional processes. 19. Consequently, the Respondents pray that the Petition dated 15th December 2025 be dismissed with costs. ***The Rejoinder*** 1. In response, the Petitioner filed a supplementary affidavit sworn by Robinson K. Kirui on 2nd March 2026 whereupon it averred that the Respondents’ assertion that the retirement notices had been issued strictly in accordance with Government policy was misleading and incomplete. 2. The Petitioner contended that, under section 59(1)(b) of the Labour Relations Act, a registered Collective Bargaining Agreement binds the employer, the trade union and all unionisable employees covered by it. 3. Citing Clause 32.0 of the 2012/2013 Collective Bargaining Agreement between the University of Eldoret and the Kenya Universities Staff Union (KUSU), the Petitioner asserted that it provided that the Agreement would remain valid and binding upon the parties. 4. According to the Petitioner, clause 32.0 was couched in clear and unambiguous terms and did not permit either party to vary the CBA unilaterally. The Petitioner maintained that, by virtue of clause 32.0(a), the CBA did not lapse on 30th June 2013 but expressly continued in force until it was mutually amended or replaced by a subsequently negotiated agreement. It was further averred that clause 32.0(b) prescribed a mandatory review procedure requiring the issuance of written notice and engagement between the parties. 5. The Petitioner contended that the Respondents had not issued any written notice seeking to review or amend the provision relating to retirement age in accordance with clause 32.0(b). 6. The Petitioner further stated that no negotiations had been undertaken and no subsequent agreement varying the retirement age from sixty-five (65) years to sixty (60) years had been registered. 7. The Petitioner therefore contended that the Respondents’ reliance on Government Circular Ref. No. OP/CAB.9/1 dated 16th June 2025 could not override their contractual and statutory obligations under a subsisting CBA. In this regard, the Petitioner averred that the assertion by the Respondents that the CBA had been “overtaken by events” or was “subject to Government policy” was legally untenable. The Petitioner maintained that Government circulars could not unilaterally vary the terms of a negotiated and registered CBA without compliance with the applicable statutory dispute-resolution framework. 8. In this regard, the Petitioner maintained that it is a cardinal principle of labour law that an employer could not unilaterally alter terms and conditions of employment negotiated through collective bargaining. 9. The Petitioner further contended that Government policy could not supersede rights protected under Article 41 of the Constitution, which guarantees the right to fair labour practices. 10. On legitimate expectation, the Petitioner averred that such an expectation arose where a public authority, through a representation or established practice, created an expectation that it would act in a particular manner. 11. The Petitioner asserted that the Respondents could not rely on public policy to defeat the affected employees’ legitimate expectation where no lawful process had been undertaken to vary the applicable retirement terms. 12. It was further contended that the mandatory retirement age of sixty (60) years in the Public Service was not absolute, as several public institutions lawfully operated under different retirement frameworks arising from negotiated agreements. 13. The Petitioner averred that the Respondents had not demonstrated that the CBA had been nullified, declared unlawful or set aside by any competent court or statutory body. 14. In response to the averment by the Respondents that the Petition raises a purely labour dispute and not disclose a constitutional violation, the Petitioner maintained that the impugned retirement notices implicated, among others, the right to fair labour practices under Article 41, the right to fair administrative action under Article 47 and the right to a fair hearing under Article 50 of the Constitution. 15. The Petitioner further averred that the affected employees had not been accorded meaningful consultation before the unilateral alteration of their retirement age, contrary to the requirements of fair administrative action under the Fair Administrative Action Act, 2015. 16. According to the Petitioner, the approvals allegedly granted by the University Management Board and Council did not cure the illegality arising from the unilateral departure from the terms of the CBA. 17. In response to the averment made by the Respondents that enforcement of the CBA would expose them to audit queries, the Petitioner averred that the argument was speculative and could not justify the violation of binding contractual and constitutional rights. 18. In the end, the Petitioner maintained that the retirement notices issued to the affected employees were unlawful and unconstitutional and had been issued in breach of the CBA. 19. As directed by the court on 18th February 2026, the Petition was disposed of by way written submissions. I have perused the record and did not find submissions for the Petitioner. ***The Respondents’ submissions*** 1. In their submissions dated 2nd July 2026, the Respondents identified the following issues for determination: - 2. Whether the retirement notices issued by the Respondents were unlawful or unconstitutional 3. Whether the 2012/2013 Collective Bargaining Agreement overrode Government policy on retirement age 4. Whether the doctrine of legitimate expectation applied in the circumstances of the case 5. Whether the Petition disclosed any violation of constitutional rights 6. Whether the Petitioner was entitled to the reliefs sought. 7. On the first issue, regarding whether the retirement notices issued to the affected employees were unlawful or unconstitutional, the Respondents submitted that the notices were lawful, procedurally proper and issued in strict compliance with Government policy. 8. The Respondents maintained that the 1st Respondent was a public university established under the Universities Act and was, therefore, bound by Government circulars and policies governing the Public Service. The Respondent submitted that the Government Circular Ref. No. OP/CAB.9/1 dated 16th June 2025 reiterated that the mandatory retirement age in the Public Service was prescribed under regulation 70(1) of the Public Service Commission Regulations, 2020 which provides subject to the Constitution, section 80 of the Public Service Commission Act, any relevant written law and any specific Government policy, the mandatory retirement age in the Public Service shall be: 9. sixty (60) years 10. sixty-five (65) years for persons with disabilities 11. such age as may be prescribed by the relevant legislation and guidelines for lecturers and research scientists serving in public universities, research institutions or equivalent institutions. 12. On this basis, the Respondents urged the Court to find that the mandatory retirement age in the Public Service was sixty (60) years unless otherwise lawfully extended. They maintained that they had acted within the law by implementing a binding Government directive and could not, therefore, be faulted for issuing the impugned retirement notices. 13. On the second issue, regarding whether the 2012/2013 CBA overrode Government policy on retirement age, the Respondents maintained that the applicable Government policy prescribed a mandatory retirement age of sixty (60) years. They contended that any provision of the CBA purporting to prescribe a different retirement age could not override the applicable statutory framework and binding Government policy. 14. On the third issue as to whether the doctrine of legitimate expectation applied in the circumstances of the case the Respondents relied on ***Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others*, Petitions Nos. 14, 14A, 14B and 14C of 2014 (Consolidated), and *Republic v Nairobi City County & another ex parte Wainaina Kigathi Mungai* [2014] eKLR**, for the proposition that legitimate expectation could not override the law. The Respondents also relied on ***Republic v Kenya Revenue Authority ex parte Aberdare Freight Services Limited [2004] 2 KLR 530***. 15. The Respondents therefore submitted that although the affected employees had a legitimate expectation to retire upon attaining the age of sixty-five (65) years, the doctrine of legitimate expectation could not apply where the alleged expectation was contrary to the law or public policy. They maintained that the applicable policy prescribed a retirement age of sixty (60) years and that any expectation of retirement beyond that age was unlawful and unenforceable. 16. They therefore urged the Court to find that the Petitioner’s reliance on the doctrine was misplaced. 17. On the fourth issue, regarding whether the Petition disclosed any constitutional violation, the Respondents submitted that the Petitioner had alleged violations of Articles 27, 41 and 47 of the Constitution. They maintained that the retirement notices and the process leading to their issuance were lawful and did not violate any of the cited constitutional provisions. 18. The Respondents further contended that the retirement notices had been properly issued and that the impugned circular applied uniformly to all public universities. The Court was thus urged to find that they had not violated the affected employees’ constitutional rights. 19. Lastly, on whether the Petitioner was entitled to the reliefs sought, the Respondents submitted that the Petitioner had not established any basis for the grant of those reliefs. They maintained that they had acted lawfully in issuing the retirement notices and that granting the orders sought would undermine Government policy, disrupt public administration and expose them to audit queries. 20. The court was thus urged to find the Petition dated 15th December 2025 to be without merit and dismiss it with costs. **Determination** 1. Having carefully considered the Petition, the response thereto, the supplementary affidavit and the submissions on record, the issues that fall for determination are: - 2. Whether the 2012/2013 Collective Bargaining Agreement remained valid, binding and enforceable 3. Whether Government Circular Ref. No. OP/CAB.9/1 dated 16th June 2025 entitled the Respondents to change the retirement age of the Petitioner’s unionisable members from sixty-five (65) years to sixty (60) years 4. Whether the impugned retirement notices violated the contractual, statutory and constitutional rights of the Petitioner’s members 5. Whether the Petitioner is entitled to the reliefs sought. *Whether the 2012/2013 Collective Bargaining Agreement remained valid, binding and enforceable* 1. The Petitioner contended that the 2012/2013 CBA was duly negotiated, executed and registered under the Labour Relations Act and that upon registration, the CBA acquired legal force and its terms became incorporated into the contracts of employment of the unionisable employees of the 1st Respondent. 2. The Respondents did not dispute the execution or registration of the said CBA. Their position was that the Agreement had expired, had been overtaken by the prevailing Government policy regulating retirement age in the Public Service. 3. Section 59 of the Labour Relations Act provides: - *59.(1) A collective agreement binds for the period of the agreement –* *(a) the parties to the agreement* *(b) all unionisable employees employed by the employer, group of employers or members of the employers’ organisation party to the agreement; or* *(c) the employers who are or become members of an employers’ organisation party to the agreement, to the extent that the agreement relates to their employees.* *(2) A collective agreement shall continue to be binding on an employer or employees who were parties to the agreement at the time of its commencement and includes members who have resigned from that trade union or employer association* *(3)* *The terms of the collective agreement shall be incorporated into the contract of employment of every employee covered by the collective agreement.* *(4) A collective agreement shall be in writing and shall be signed by―* *(a) the chief executive officer of any employer, the chief executive or national secretary of an employers' organisation that is a party to the agreement or a representative designated by that person; and* *(b) the general secretary of any trade union that is a party to the agreement or a representative designated by the general secretary.* *(5) A collective agreement becomes enforceable and shall be implemented upon registration by the Industrial Court and shall be effective from the date agreed upon by the parties* 1. From the above provision of the law, it follows that a registered CBA is not only an expression of the parties’ intentions but is a binding instrument whose terms become part of the individual contracts of employment of the employees whom it covers. 2. Clause 22.1 of the 2012/2013 CBA provides:- ***22.1 Retirement (a) The compulsory retirement age shall be sixty-five (65) years.*** 1. Clause 32.0 on the other hand provides: *32.0 Effective Date* *(a) This Agreement shall cover the period from 1st July 2012 to 30th June 2013. Thereafter, it shall continue in force until mutually amended or until the parties negotiate and bring into force another agreement.* *(b) Either party shall give the other party not less than one month’s written notice of its desire to review the CBA. The receiving party shall respond within thirty (30) days from the date of receipt of the notice.* 1. The wording of clause 32.0(a) is clear and unambiguous. The expiry of the bargaining period on 30th June 2013 did not terminate the CBA. The parties expressly agreed that the CBA would continue in force until it was mutually amended or replaced by another negotiated agreement. 2. Clause 32.0 (b) prescribed the procedure for reviewing the CBA. It required either party desiring a review to give the other party not less than one month’s written notice, to which the receiving party was required to respond within thirty days. 3. The Respondents did not produce any written notice issued under clause 32.0(b), evidence of negotiations undertaken to vary clause 22.1 or a subsequently registered Collective Bargaining Agreement replacing the 2012/2013 CBA. Neither did they identify the events which allegedly overtook the Agreement or demonstrate their legal effect upon the retirement provision. 4. Although the Petitioner referred to the 2021–2025 National CBA, the Respondents neither relied upon nor produced that Agreement. No registered copy was placed before the Court from which its registration, terms, scope, effective date or application to the 1st Respondent and the affected employees could be ascertained. 5. The Court cannot determine the legal effect of an instrument that was not placed in evidence. Consequently, no finding can properly be made that the 2021–2025 National CBA amended, replaced or superseded clause 22.1 of the registered 2012/2013 CBA. 6. The Petitioner further invoked section 26(2) of the Employment Act and contended that the retirement age of sixty-five (65) years was more favourable to its members than the retirement age of sixty (60) years. 7. Section 26(2) preserves terms and conditions contained in regulations, collective agreements, contracts, customs or arrangements that are more favourable to an employee than the minimum conditions prescribed under Parts V and VI of the Employment Act. The provision does not, however, determine the precedence between successive CBAs. 8. The issue before court is the legal effect of the registered 2012/2013 CBA and whether the Respondents proved its lawful amendment or replacement. 9. The assertion that the CBA had expired or had been “overtaken by events” was not supported by evidence is contrary to section 59(1)(3) which provides that “*The terms of the collective agreement shall be incorporated into the contract of employment of every employee covered by the collective agreement*.” The effect of that section is that the terms of service of each employee is automatically amended by the registration of the CBA and entrenched. The expiry of the CBA does not affect such terms which remain part of the terms of service of each employee. A policy direction by the Government cannot displace the binding legal effect conferred upon the Agreement by section 59 of the Labour Relations Act and clause 32.0 of the CBA itself. 10. Further, section 10(5) of the Employment Act which sets out the particulars to be included in an employment contract provides: *(5) Where any matter stipulated in subsection (1) changes, the employer shall, in consultation with the employee, revise the contract to reflect the change and notify the employee of the change in writing.* 1. The unilateral change of the retirement age was thus a violation of the law. 2. The Court therefore finds that the Respondents failed to establish that the 2012/2013 CBA had expired, been amended or been lawfully replaced. They further failed to prove that, if the changes were done, it was in accordance with section 10 of the Employment Act. Accordingly, the retirement age of 65 years remained valid, binding and enforceable at the time the impugned retirement notices were issued. *Whether Government Circular Ref. No. OP/CAB.9/1 dated 16th June 2025 entitled the Respondents to change the retirement age of the Petitioner’s unionisable members from sixty-five (65) years to sixty (60) years* 1. The Respondents contended that the 1st Respondent is a public university established under the Universities Act and is therefore bound by Government circulars and policies governing the Public Service. They relied on the Circular and regulation 70(1) of the Public Service Commission Regulations, 2020. 2. Regulation 70(1) provides ***70. Retirement on age grounds*** ***(1)*** *Subject to the Constitution, section 80 of the Act, any other relevant written law or a specific Government policy, the mandatory retirement age in the public service shall be—* 1. *sixty years* 2. *sixty-five years for persons with disability; and* 3. *such age as may be determined by the Commission for lecturers and research scientists serving in public universities, research institutions or equivalent institutions, as determined by the Commission in consultation with such universities, research institutions or equivalent institutions.* 4. Government circulars and administrative directives facilitate the implementation of Government policy. They do not, in my view constitute legislation and cannot, without express statutory authority, amend or extinguish rights arising from a registered Collective Bargaining Agreement. 5. In [***Mukiria Farmers Co-operative Society Ltd v Jacob Rukaria & 5 others [2017] KECA 432 (KLR)***](https://new.kenyalaw.org/akn/ke/judgment/keca/2017/432/eng%402017-06-07)***,*** the Court of Appeal held: - *“23. We do not, however, agree with the alternative argument advanced by counsel that the CBA was a nullity in view of government circulars issued on the retirement age. In the first place, as correctly held by the trial court, the circulars were no substitute for the law. In the second place,***Section 61***, LRA, appears to cover***"the public sector where there is no collective bargaining".***There was collective bargaining in this matter and the resultant CBA was lawfully registered with the court as by law required. There was no vacuum after expiry of the CBA as alluded to by the trial court. All workers continue to be protected under the Constitution and the employment and labour laws enacted by the legislature. In sum, the first ground of appeal succeeds.”* 1. The Respondents did not place before the court any provision of the Public Service Commission Act, the Public Service Commission Regulations or any other written law expressly authorising the unilateral amendment of a registered CBA through a Government circular. 2. Further, regulation 70(1) is itself expressly made subject to the Constitution, section 80 of the Public Service Commission Act, relevant written law and specific Government policy. It does not expressly nullify existing CBAs or exempt public institutions from their obligations under sections 59 and 60 of the Labour Relations Act. 3. If the Respondents considered clause 22.1 inconsistent with prevailing Government policy, the lawful course was to invoke the review procedure prescribed under clause 32.0(b) and negotiate an amendment with the Petitioner. Alternatively, they could have pursued the mechanisms available under the Labour Relations Act. They could not unilaterally alter the agreed retirement age through an internal memorandum founded upon an administrative circular. 4. The approvals granted by the University Management Board and the University Council did not cure that defect. Internal administrative approvals could authorise the implementation of a lawful policy but could not amend or override the binding terms of a registered CBA. 5. In addition, the Respondents’ argument that adherence to the CBA would expose the University to audit queries or administrative sanctions was not supported by evidence. Further, an audit cannot question a term of service that is in accordance with the law. 6. Consequently, I find that Government Circular Ref. No. OP/CAB.9/1 dated 16th June 2025 did not authorise the Respondents to unilaterally amend the retirement age prescribed under clause 22.1 of the registered 2012/2013 CBA from sixty-five (65) years to sixty (60) years. *Whether the impugned retirement notices violated the contractual, statutory and constitutional rights of the Petitioner’s members* 1. The Petitioner contended that the unilateral alteration of the retirement age violated the contractual and statutory rights of its members and their right to fair labour practices under Article 41 of the Constitution. It further contended that the members had a legitimate expectation that they would retire upon attaining the age of sixty-five (65) years. 2. Article 41(1) of the Constitution guarantees every person the right to fair labour practices, while Article 41(5) guarantees trade unions, employers and employers’ organisations the right to engage in collective bargaining. 3. Retirement age is a fundamental term of employment because it determines the expected duration of the employment relationship and affects an employee’s remuneration, pension arrangements, financial planning and career expectations. The Respondents could not lawfully alter unilaterally the retirement age of their employees while the registered CBA prescribing it remained in force. 4. Further, section 10(5) of the Employment Act requires an employer, where any matter stipulated in the employment contract changes, to revise the contract in consultation with the employee and notify the employee of the change in writing. It follows that where the relevant term arises from a registered CBA, its alteration must additionally comply with the collective bargaining framework under the Labour Relations Act. 5. From a perusal of the record, the evidence demonstrates that the Respondents did not negotiate with the Petitioner before implementing the retirement age of sixty (60) years. They proceeded to issue the impugned notices without first lawfully varying clause 22.1 of the CBA. 6. The affected employees had legitimate expectation that they would retire at sixty-five (65) years founded upon an express provision of a registered CBA, the University’s Terms of Service and the Respondents’ established practice. 7. In [***Communications Commission of Kenya & 5 others v Royal Media Services Ltd & 5 others [2014] KESC 53 (KLR***)](https://new.kenyalaw.org/akn/ke/judgment/kesc/2014/53/eng%402014-09-29), the Supreme Court held:- *“263. Legitimate expectation” is a doctrine well recognized within the realm of administrative law, as is clear from the English case, In re Westminster City Council, [1986] A.C. 668 at 692(Lord Bridge)* *“….the courts have developed a relatively novel doctrine in public law that a duty of consultation may arise from a legitimate expectation of consultation aroused either by a promise or by an established practice of consultation”.* *264. In proceedings for judicial review, legitimate expectation applies the principles of fairness and reasonableness, to the situation in which a person has an expectation, or interest in a public body retaining a long-standing practice, or keeping a promise.* *265. An instance of legitimate expectation would arise when a body, by representation or by past practice, has aroused an expectation that is within its power to fulfil. A party that seeks to rely on the doctrine of legitimate expectation, has to show that it has locus standi to make a claim on the basis of legitimate expectation…* *267. The principle is well reflected in judicial practice in Kenya. A relevant excerpt from Republic v. Nairobi City County & Another ex parte Wainaina Kigathi Mungai, High Court Judicial Review Misc. case No. 356 of 2013; [2014] Eklr thus reads [paragraph 33]:* *…the legal position is that legitimate expectation cannot override the law. This was the position in Republic vs. Kenya Revenue Authority, ex parte Aberdare Freight Services Limited [2004] 2 eKLR 530 where it was held:* *‘…a public authority may not vary the scope of its statutory powers and duties as a result of its own errors or the conduct of others. Judicial resort to estoppel in these circumstances may prejudice the interests of third parties. Purported authorisation, waiver, acquiescence and delay do not preclude a public body from reasserting its legal rights or powers against another party if it has no power to sanction the conduct in question or to endow that party with the legal right or inventory that he claims… Legitimate expectation is founded upon a basic principle of fairness that legitimate expectation ought not be thwarted – that in judging a case a judge should achieve justice, weigh the relative ‘strength of expectation’…”* 1. In the same case the Court went on to state: *“268. An illuminating consideration of the concept of “legitimate expectation” is found in the South African case, South African Veterinary Council v. Szymanski 2003(4) S.A. 42 (SCA) at [paragraph 28]: the Court held as follows:* *The law does not protect every expectation but only those which are 'legitimate'. The requirements for legitimacy of the expectation include the following:* *i. The representation underlying the expectation must be 'clear, unambiguous and devoid of relevant qualification': De Smith, Woolf and Jowell (op cit [Judicial Review of Administrative Action 5th ed] at 425 para 8-055). The requirement is a sensible one. It accords with the principle of fairness in public administration, fairness both to the administration and the subject. It protects public officials against the risk that their unwitting ambiguous statements may create legitimate expectations. It is also not unfair to those who choose to rely on such statements. It is always open to them to seek clarification before they do so, failing which they act at their peril.* *(ii) The expectation must be reasonable: Administrator, Transvaal v. Traub (supra [1989 (4) SA 731 (A)] at 756I - 757B); De Smith, Woolf and Jowell (supra at 417 para 8-037).* *vi.The representation must have been induced by the decision- maker: De Smith, Woolf and Jowell (op cit at 422 para 8-050); Attorney- General of Hong Kong v. Ng Yuen Shiu [1983] 2 All ER 346 (PC) at 350h - j.* *vii. The representation must be one which it was competent and lawful for the decision-maker to make without which the reliance cannot be legitimate: Hauptfleisch v. Caledon Divisional Council 1963 (4) SA 53 (C) at 59E - G.* *”This was also referred to with approval in Walele v. City of Cape Townand Others; 2008 (6) S.A 129 (C.C.) paragraph 41.* *269. The emerging principles may be succinctly set out as follows:* *a. there must be an express, clear and unambiguous promise given by a public authority;* *b. the expectation itself must be reasonable;* *c. the representation must be one which it was competent and lawful for the decision-maker to make; and* *d. there cannot be a legitimate expectation against clear provisions of the law or the Constitution.* 1. In the instant case, the expectation did not contradict any express statutory prohibition. It was founded upon an operative contractual term recognised and protected under the Labour Relations Act and the expectation remained legitimate for as long as clause 22.1 remained valid and binding. 2. It therefore follows that by issuing retirement notices founded upon a retirement age inconsistent with the subsisting CBA, the Respondents breached the affected employees’ contractual rights and undermined the statutory protection accorded to registered collective agreements under the Labour Relations Act. 3. The Respondents’ conduct also amounted to an unfair labour practice contrary to Article 41 of the Constitution. 4. Consequently, I find that the impugned retirement notices were unlawful and could not be sustained. *Whether the Petitioner is entitled to the reliefs sought* 1. Having found that the 2012/2013 CBA remained binding upon the parties, that Government Circular Ref. No. OP/CAB.9/1 did not authorise its unilateral alteration and that the retirement notices were issued in breach of clause 22.1 of the CBA, I find that the Petitioner has established a proper basis for declaratory relief and an order setting aside the impugned retirement notices. 2. An order of mandamus is ordinarily issued to compel the performance of a public duty imposed by law. In view of the declaratory orders and the order setting aside the impugned notices, a separate order of mandamus is unnecessary. 3. The Petitioner sought a permanent injunction restraining the Respondents from retiring its unionisable members before attaining the age of sixty-five (65) years. That relief must be framed carefully so as not to prevent the parties from subsequently varying the retirement age through lawful collective bargaining or other applicable legal processes. 4. On costs, the Petitioner has substantially succeeded. There is no sufficient reason for departing from the principle that costs follow the event. 5. In the upshot, the Petition dated 26th January 2026 succeeds to the following extent: 6. A declaration is hereby issued that the 2012/2013 Collective Bargaining Agreement remained valid, binding and enforceable between the Petitioner and the 1st Respondent at the time the impugned retirement notices were issued. 7. A declaration is hereby issued that Government Circular Ref. No. OP/CAB.9/1 dated 16th June 2025 did not, without the lawful amendment or replacement of the registered CBA, authorise the Respondents to change the retirement age of the Petitioner’s unionisable members from sixty-five (65) years to sixty (60) years. 8. A declaration is hereby issued that the Respondents’ unilateral alteration of the retirement age and issuance of the impugned retirement notices violated the affected employees’ right to fair labour practices under Article 41 of the Constitution. 9. The retirement notices issued to the affected employees on 2nd December 2025 are hereby set aside and/or vacated. 10. A permanent injunction is hereby issued restraining the Respondents, whether by themselves, their officers, servants or agents, from implementing or enforcing the impugned retirement notices or compulsorily retiring the affected employees at the age of sixty (60) years unless and until the applicable retirement term is lawfully amended or replaced through collective bargaining or another legally recognised process. 11. The Respondents shall bear the costs of the Petition. 12. It is so ordered. **DATED, SIGNED AND VIRTUALLY AT ELDORET** **ON THIS 30TH DAY OF JULY, 2026** **MAUREEN ONYANGO** **JUDGE**