Migot v National Police Service Commission & 4 others (Employment and Labour Relations Petition E135 of 2024) [2026] KEELRC 1718 (KLR) (19 June 2026) (Judgment)

Migot v National Police Service Commission & 4 others (Employment and Labour Relations Petition E135 of 2024) [2026] KEELRC 1718 (KLR) (19 June 2026) (Judgment) Neutral citation: [2026] KEELRC 1718 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Employment and Labour Relations Petition E135 of 2024 JW Keli, J June 19, 2026 IN THE MATTER OF VIOLATION OF ARTICLES 12, 19, 20, 21, 22, 23, 24, 25, 27, 28, 41, 47, 48, 50(1), 159(2)(A) AND (D), 162(2) (A), 258, 259 & 260 OF THE CONSTITUTION OF KENYA, (2010) AND IN THE MATTER OF CONTRAVENTION OF ARTICLE 7 OF THE UNIVERSAL DECLARATION OF HUMAN RIGHTS (1948) AND IN THE MATTER OF SECTION 80 OF PUBLIC SERVICE COMMISSION ACT NO. 10 OF 2017 AND IN THE MATTER OF REGULATION 70(1) (B) OF THE PUBLIC SERVICE COMMISSION REGULATIONS, (2020) AND IN THE MATTER OF IMPLEMENTATION OF GOVERNMENT CIRCULAR REF.NO. MSPS/HRM/2/2/2/VOL.II (21) DATED 29 MAY, 2012 AND IN THE MATTER OF IMPLEMENTATION OF GOVERNMENT CIRCULAR REF.NO. PSC/ADMIN/13(7) DATED 19 NOVEMBER 2020 AND IN THE MATTER OF SECTION 15(1) (E) OF PERSONS WITH DISABILITIES ACT NO. 14 OF 2003 AND IN THE MATTER OF PERSONS WITH DISABILITIES (REGISTRATION) REGULATIONS, (2009) AND IN THE MATTER OF THE EMPLOYMENT ACT (2007) AND IN THE MATTER OF SECTIONS 3 AND 12 OF THE EMPLOYMENT AND LABOUR RELATIONS COURT ACT NO. 20 OF 2011 AND IN THE MATTER OF RULES 3, 7 & 17 OF THE EMPLOYMENT AND LABOUR RELATIONS COURT (PROCEDURE) RULES, 2016 AND IN THE MATTER OF SECTION 4 OF THE FAIR ADMINISTRATIVE ACTION ACT, (2016) AND IN THE MATTER OF UNFAIR DISCRIMINATION ON GROUNDS OF DISABILITY AND IN THE MATTER OF RETIREMENT AGE OF FORMER SENIOR INSPECTOR OF POLICE LUKE UHURU MIGOT Between Luke Uhuru Migot Petitioner and National Police Service Commission 1st Respondent The Inspector General Of Police 2nd Respondent The Directorate Of Criminal Investigations 3rd Respondent The Public Service Commission 4th Respondent The Honourable Attorney General 5th Respondent Judgment 1.The petitioner was a person registered as having a disability while in employment. Upon attainment of 60 years he was issued with a retirement letter following to a negative medical fitness test. The petitioner is aggrieved with the retirement at 60 years instead of 65 accorded by law to persons with disability. He filed the instant petition dated 27th August 2024 and amended on the 3rd September 2025 against the respondents seeking for the following reliefs-a.A declaration that the Petitioner's retirement is indeed wrongful, unlawful, and grossly an unfair retirement and a violation of the Petitioner's Constitutional rights and fundamental freedoms and the same is an abuse of the fair labour practices under Articles 41(1) of the Constitution of Kenya (2010) and further violates the provisions of section 70(1)(b) of the Public Service Commission Regulations 2(2020).b.That a declaration be made that the failure by the 1st, 2nd and 4th Respondents to extend the Petitioner's retirement age from 60 years to 65 years in total disregard of the stated government policy amounts to violation of his right to be discriminated against on the ground of health, age and disabilityc.That a declaration that being dully registered as person with disability, he is entitled to serve until the age of 65 yearsd.That a declaration that the Retirement Notice dated 07 September, 2020 from the 1st Respondent and the letter dated 13th February 2020 declining the recommendation of the Petitioner to retire at the age of sixty-five (65) years are null and void.e.That a declaration that the Petitioner is entitled to payment of Ksh. 12,213,000 tabulated at the rate of Ksh. 203,550 per month being what the Petitioner earned per month in salary and amount in arrears ff.) A declaration that the Petitioner is entitled to pension payments for the extra 5 years that he was unlawfully denied but legally entitled tabulated at the rate of the pensions department and the prevailing law.f.An order do hereby issue directing the payment of such unpaid salary and pension payments. That a declaration be made the Petitioner be compensated a total sum of 10,000,000 Ten Million Kenya shillings as general damages for his incorporeal losses or any other amount the court may deem fit and appropriate to grant for violation his rights and fundamental freedoms under Article 27(4), (5), (6) and (7) of the Constitution of Kenya and Article 7 of the Universal Declaration of Human Rights (1948).g.That the Petitioner be awarded Ksh. 10,000,000 in general damages or as the court may assess.h.That the Petitioner be awarded nominal damages as the court may assess.i.That the Petitioner be awarded aggravated damages as the court may assessj.Costs of the petitionk.Interests on prayers (g), (h) and (i) at courts rate till payment in full. 2.In support of the petition, the petitioner filed a verifying affidavit dated 6th August 2024, a list of documents dated 27th August 2024 and a further list of documents dated 3rd September 2025. Response 3.The 4th respondent filed grounds of opposition dated 21st February 2025 to effect that it was wrongfully joined in the suit, that the subject matter of the suit did not fall within its mandate. The 4th respondent stated that no party would be prejudiced if it was struck off the suit. 4.The 2nd,3rd and 5th respondents relied on the replying affidavit sworn by Mr. Francis K Ndiema on the 18th November 2025, who admitted the employment relationship. The deponent annexed the letter of employment of the petitioner of 1st December 1986, a medical report on the accident of 2005 for the petitioner, and a medical report of the accident in 2017. The deponent averred that the petitioner was certified as a person with disability on 19th December 2017 and issued with an income tax exemption for 5 years, and annexed the certificate. The deponent stated that the petitioner was notified of imminent retirement on the 7th September 2020 and annexed the notice and issued a letter indicating accumulated leave days. Mr. Ndiema stated that the petitioner applied for extension of service through the immediate supervisor to be considered for retirement at 65 years as a person living with disability in accordance with the PSC circular dated 29th May 2012. That the 1st respondent informed the petitioner it was yet to establish a special medical board to examine officers seeking extension owing to disability( copy of the letter from the Inspector General annexed). The petitioner was examined by a medical board consisting of 3 medical practitioners in line with the law, which found him unfit to hold office, and it was recommended that he be retired on medical grounds. Attached is the report. The deposition stated that the petitioner was privy to retirement regulations in the servicing standing orders chapter 29 paragraph 24(1) that provides for retirement on medical grounds, and it is upon these grounds he exited the national police service. The decision was communicated to the petitioner, and he was officially retired effective 2nd March 2022. 5.Mr. Ndiema further stated that there was no violation of Article 47 of the Constitution, as the petitioner was involved in the process of the medical fitness test. The petitioner did not appeal the decision, and it was presumed he was satisfied. That the petition was malicious as brought 2 years post the decision on retirement and that setting aside the decision would be prejudicial and would subject the government to unjust fiscal liability. Rejoinder The petitioner filed a reply to the response as follows- 6.That in response to paragraph 25, I reiterate that during the three road traffic accidents, I only sustained hip-joint dislocation, fracture of the knee and fracture of the femur all on the right leg. I never at any occasion sustained head injury occasioning me mental illness. The same is misleading, speculative and has not been supported by any documentary evidence. (Attached herewith and marked “LUM-001” is the Medical Assessment Report done after the last accident in 2017 and signed by Director of Medical Services) 7.That in response to paragraph 26, I have never been issued with any Medical Assessment Report to date and was never served with any Show Cause letter as the 2nd, 3rd and 5th Respondents lacked the critical information capable of demonstrating inability to perform my duties effectively. Further to that, I aver that I was performing instructional duties at the DCI Academy as the Chief Instructor, seconded to National Police Service Commission disciplinary committee performing prosecutorial duties to the committee as well as DCI Headquarters, legal and crime affairs Deputy Director before my eventual retirement day without any challenges, warning or reprimand. The responsibilities are demanding and which cannot effectively be performed by a person with questionable mental capability. (Attached herewith and marked “LUM-002” is the National Police Service Commission Appointment) 8.That the process was clandestinely initiated and orchestrated without involving me and as such, was discriminatory, unprocedural, unfair, unlawful, unreasonable and lacking in efficiency. In response to paragraph 27, I aver that no grounds were listed for my retirement on medical grounds. The relevant paragraph to terminate the services of a gazetted police officer for whatever reason and when unable to carry out his duties due to illness, would precisely require the strict adherence to para 26(1) of the Service Standing Orders (Hereinafter “SSO”) which was deliberately ignored. The process and procedure that ensued was therefore inherently flawed. Further to that, the only communication I was issued with was that for mandatory retirement on attainment of 60yrs of age, but not that on medical grounds whose initiation and procedures are totally different from that on attainment of 60yrs of age as alluded. My retirement on medical grounds for gazetted police officers starts from para 26 (1) Cap 29 Service Standing Orders, then followed by section 72 (1-5) of the Kenya subsidiary legislation 2020 and finally read together with section D21 as read with 23 (1-4) of Human Resource Policies and Procedure Manual. (The retirement of an officer on medical ground will require the authority of public service commission. I.e. the authority to retire a public officer on medical ground shall vest in public service commission. In response to paragraph 29, my access to information was frustrated even when I complained to have my Medical Assessment Report, I was still denied. The process has been shrouded in secrecy and conducted without my invitation, to the extent that by the time I was retiring, some of the documents that have been attached herein in the 2nd, 3rd and 5th Respondent’s Affidavit were hidden and could not be shown to me, yet the Respondents have alluded that they were on record. 9.In response to paragraph 30, I aver that my pension was processed under mandatory retirement at 60 years of age and the petitioner paid tax as by the law provided. The documents being touted to belong to me are unsubstantiated. There is no documentary proof that the money was credited to my account at Standard Chartered Bank. ((Attached herewith and marked “LUM-003” is the Pension Disbursement upon my retirement) My final pension dues were tabulated on mandatory retirement age of 60yrs. As indicated in Part 1 –Statement for Particulars, para 8 and 9 of “DCI-10” which bore the cause of retirement as-Mandatory Retirement instead of Retirement on Medical Ground and the authority for retirement as Ref. DCI /A/EST/7/40/A/VOL.1 (99) Dated 7th /9/2020 from DCI, the same letter I was served with for mandatory retirement at attainment of 60yrs. This means there was no any other instructions given to pension department to process my pension for retirement on medical grounds. Hence, I was not compensated as alluded by Respondent “DCI-9” Executive Summary, pg.-11 para 2,3 and 4, which were not implemented rendering the two exhibits (DCI-9 and 10) to be false documents purported to be what in fact they are not. Further, there is no evidence that the computation made in my final dues were inclusive of compensation payments indicated in the Respondent’s documents “(DCI-10)” and stated by exhibit DCI-9. 10.That in response to paragraph 31, I aver that my rights were deliberately and with great impunity trampled upon indiscriminately, which violations have subjected me to being the sole bread winner of my family and relatives alike to ridicule, embarrassment and untold suffering. The ultimate power of retiring a gazetted police officer on medical grounds is vested in the Public Service Commission. This authority cannot be delegated to any authorized officer, the 1st respondent included. Para 26 (1) Cap 29 of Service Standing Orders and Section 72 (1-4) of Kenya subsidiary legislation 2020, is very explicit about it demonstrating that the right procedure or process was not followed in dealing with my case. 11.In response to paragraph 32, I aver that the 1st Respondent’s Medical Board recommendations are not absolute. They must be verified and confirmed by the Director of Medical Services before eventually forwarding them with his recommendations to the Public Service Commission for concurrence and authorization before an action is taken or being acted upon because a gazette police officer is a national officer, not a departmental officer who is under the control or management of authorized officer. 12.I state in response to paragraph 33 that any decision illegally made, from a flawed process or procedure which contravenes Article 47 of the Constitution of Kenya (2010) which is the cardinal principle governing fair admirative action and to the extent of its violation and inconsistency. In response to paragraph 34, I aver that the only process that I was involved was at the initial stage of medical assessment which to date, I have not been briefed of its outcome, thus, I was excluded in all the rest of the process stages namely;a)Right to be given my Medical Assessment Report done on 9th June 2020.b)Right to be served with Show Cause Letter listing grounds for my inability to perform my duties and responsibilities efficiently and effectively and right to give response in reply on each listed ground.c)Right to be subjected to the relevant medical team of the Director of Medical Services to confirm the recommendations of the authorized officer medical board or otherwise and proceed to give his recommendations or comment.d)Right to forward the proceedings to the PSC for deliberation and final assent to as the authority to retire any public officer on medical ground which is vested on the PSC and cannot be delegated. Section 72 of Kenya subsidiary legislation 2020, para 26 (1) Cap 29 of SSO and section D21, D23 of the Human Resource on policies and procedure Manual. Articulates these processes clearly but all were deliberately ignored. 13.That in response to paragraph 35, I was never served with any correspondence suggesting that my retirement on medical ground was being contemplated to which I was to exercise a right of appeal. The 2nd, 3rd and 5th Respondent’s allegation of failure to exercise my right of appeal with no documentary proof that I was actually served, the same is misleading to this honourable court. In response to paragraph 36, I have been advised by my counsel that article 47 (2) clearly stipulates that “If a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action”. This law was deliberately ignored by not giving me cogent reasons for my retirement on medical grounds. In response to paragraph 37, I state that I was working very well without any shortcomings, reprimand and adverse reports in all the fields I was charged with until the 1st Respondent maliciously and discriminately decided to use orthodox ways and with total disregard to laid down procedures, retired me when the existing government policies dictated my services be extended by 5yrs due to his disability alongside other disabled persons. 14.That the filing of the petition after two years was as a result being denied access to information and delay in releasing the policy guide line which was released on 23rd of March 2023 and was the instrumental document for the petition among other documents which were concealed and hidden from my access to date. It also took the 2nd, 3rd and 5th Respondents a whole year to respond to my Petition when they had readily available documents at their disposal. This was an afterthought trying to save face and to engage on unlawful acts of falsifying documents that would support the illegal narrative they want to put across as seen in numerous documents uttered in the reply response whose verifiability are in doubt. 15.In response to paragraph 39, I aver that I has suffered immense mental torture, psychological turmoil arising from improper, irregular and unlawful retirement procedure contrary to the law and as such, I have had to incur extra expenses to withstand the pressure that comes with unlawful retirement. I am currently earning my rightful monthly pension under Mandatory Retirement on attainment of 60yrs of age. Not benefits for falsely claimed retirement on medical grounds, the Respondent indicated with false documents uttered to mislead the court that I was actually compensated and am therefore earning the money obtained from the government to compensate those retired on medical grounds. Determination 16.The petition was canvassed by way of written submissions. Issues for determination 17.The petitioner identified the following as the issue for determination in the petition –a.Whether the actions of the Respondents violated the Petitioner's constitutional rights in retiring him at 60 years instead of 65 years and as such, amounted to an unfair labour practice. 18.The 2nd,3 and 5th respondent identified the following issues for determination in the petition-i.Whether the Petitioner’s retirement was illegal, unlawful and unprocedural in violation of the Employment Act, the Fair Administrative Action Act and the Constitution.ii.Whether the actions by the Respondents infringed on the Petitioner’s constitutional rights under Articles 10, 12, 19, 20(1), and (2), 21, 22, 23, 24(1), 25(c), 27, 29(d), 41(1), 43(e), 47(1), and 50(1) of the Constitution of Kenya (2010)iii.Whether the Petitioner is entitled to the reliefs sought in the Petition 19.The 4th respondent relied on the grounds of opposition dated 19th February 2026, which the court decreed replaced the earlier 21st February 2025. 20.The court having read the pleadings of the parties was of the considered opinion that the issues for determination in the petition were –a.Whether the actions of the Respondents violated the Petitioner's constitutional rights in retiring him at 60 years instead of 65 years and as such, amounted to an unfair labour practice.b.Whether the Petitioner is entitled to the reliefs sought in the Petition Whether the actions of the Respondents violated the Petitioner's constitutional rights in retiring him at 60 years instead of 65 years and as such, amounted to an unfair labour practice. 21.The court finds that the facts of the petition were not in dispute. Core to the petition was that the petitioner was employed on 1st December 1986 and served until retirement effective on 2nd March 2022. The petitioner, while at work, was involved in three accidents. He was certified as a person living with a disability and, on the 31st October 2017, was issued with a card by the National Council of Persons with Disabilities. The disability was indicated as physical. This registration was not in dispute, and the 2nd, 3rd, and 5th respondents indeed produced the income tax exemption certificate by KRA in favour of the petitioner for five years, effective from 1st February 2019 (DCI-4). 22.The foregoing notwithstanding, the petitioner was issued with a retirement notice dated 7th September 2020 to retire on attaining the mandatory retirement age of 60 years on the 2nd March 2022(DCI-5). The petitioner requested an extension of retirement age vide letter dated 19th January 2021 as a public servant with disability and attached documents (DCI-7). 23.On 27th September 2021, the 3rd respondent issued the petitioner with outstanding leave days tabulation and reiterated the date of mandatory retirement. 24.On 16th March 2021 the 2nd respondent wrote a response on the exemption as follows-"Directorate of Criminal Investigations P.O. Box 30036-00100 NairobiRe: Application for Extension of Service -No. 218751 Mr. Luke Uhuru MigotReference is made to the letter ref. P/E.No.218751/194 dated 1 March. 2021 on the above request.The National Police Service Commission vide letter ref. NPSC/1/3/20/3 /2/VOL 1 (38) dated 13th October, 2020 advised on control measures to ensure disability is evaluated immediately an officer suffers work related injuries to determine whether the officer qualifies for the provisions of the National Council of Persons living with disability Act and the subsequent circular from the Head of Public Service.The Commission requested for Doctors from Ministry of Health to form a Special Medical Board who, together with nominated officers from the National Police Service will assess the injured/sick officers to determine the fitness to continue to serve in less strenuous duties.Please note that the Board is yet to be constituted.’’ 25.The relevant legal framework as concerns public servants with disabilities is as follow-Article 54 of the Constitution –‘54.Persons with disabilities(1)A person with any disability is entitled—(a)to be treated with dignity and respect and to be addressed and referred to in a manner that is not demeaning;(b)to access educational institutions and facilities for persons with disabilities that are integrated into society to the extent compatible with the interests of the person;(c)to reasonable access to all places, public transport and information;(d)to use Sign language, Braille or other appropriate means of communication; and(e)to access materials and devices to overcome constraints arising from the person’s disability.(2)The State shall ensure the progressive implementation of the principle that at least five percent of the members of the public in elective and appointive bodies are persons with disabilities.’’ 26.The Parliament legislated the Persons with disabilities act. On employment, it is provided-‘21.Right to work and employment for Persons with Disabilities(1)No employer shall discriminate against a person with disability in job application procedures, hiring, advancement and other terms, conditions, and privileges of employment.’’ 27.The Act created the Council with a mandate to register persons with disabilities as follows: '35.Registration of Persons with Disabilities, organizations and institutions(1)In order to facilitate access by persons with disabilities to the services set out under this Part, the Council shall register on a continuous basis—(a)persons with disabilities, to whom it shall issue disability identification cards in such form as it may determine;’’The petitioner was duly registered and issued with certificate of income tax exemption. These documents were produced by the respondents. The court noted the 3rd respondent in a letter dated 16th March 2021 stated as follows, regarding the request for extension of service for the petitioner who was living with disability- ‘The National Police Service Commission vide letter ref. NPSC/1/3/20/3 /2/VOL 1 (38) dated 13th October, 2020 advised on control measures to ensure disability is evaluated immediately an officer suffers work related injuries to determine whether the officer qualifies for the provisions of the National Council of Persons living with disability Act and the subsequent circular from the Head of Public Service.’’I find the 3rd respondent was aware of the law and deliberately relied on an extraneous issue of a further medical board contrary to the Law that public servants with disabilities are to retire at 65 years. This was a public policy applicable to the petitioner. The court finds that the subsequent medical assessment of the petitioner on his request for extension of service to 65 years as an officer living with disability violated his rights under Article 54 of the Constitution. He had served with a certified disability since 2017 when he was registered. The issue of medical fitness was thus an excuse to defeat his lawful and legitimate expectation to retire at 65 years. 28.The respondents produced the National police service claim form for retirement pension (DCI-10) with respect to the petitioner. In clause 8 the cause of retirement was written -Mandatory retirement. The court then concluded the reason for the retirement was the attainment of the mandatory retirement age of 60 years and not the alleged medical grounds following the medical assessment. The evidence produced by the respondents proved mandatory age of 60 years as the reason for retirement. The petitioner produced government circular dated 29th May 2012 which increased the retirement age of public servants as follows- ‘Retirement Age for Public Servants with DisabilitesYour attention is invited to this Ministry Circular Ref: MSPS HRM/2/2/2/(76) of 24th November, 2010 in which it was clarified that Public Servants with disabilities would retire at the age of 60 years as applicable to other Public Servants.Following petitions by Public Servants in this category, the Government has considered the request to raise their retirement age to 65 years.It has therefore been decided to accord this category of employees a longer working period with guaranteed earnings as way of cushioning them against uncertainties usually associated with retirement from formal employment.Accordingly, the mandatory retirement age for Public Servaats with disabilities has been raised to 65 years with effect from 1 July, 2012. This applies to employees with disabilities as defined in Section 2 of the Persons with Disabilities Act, 2003 who are also registered with the National Council of Persons with Disabilities.Please bring the contents of this Circular to the attention of all the staff concerned.’’ 29.The respondents submitted that, Article 54 of the Constitution of Kenya does not confer an absolute right to remain in public service irrespective of medical fitness. That the Constitution protects against discrimination but does not compel retention in service where a competent medical body determines that an officer is unfit to discharge core duties. I find the submission irrelevant as the petitioner had continued in service since 2017 when he was registered to be with physical disability, and it was only on attaining the mandatory retirement age that the issue of fitness arose. I was persuaded by decision in Muthuvi v National Police Service Commission & another [2025] KEELRC 3175 (KLR) where it was held-‘From 2015, when the Petitioner was registered as a person with disability and exempted by the 1st Respondent from paying income tax, and the extended retirement age reflected in his pay slips subsequently, he had legitimate expectation that, he would be retired at age 65 in terms of the same legislation and regulations applied with respect to his taxation. The Respondents are estopped from reneging from that promise. The inviolable doctrine of estoppel is applicable in the present case’’ 30.The court finds and holds that the Petitioner, on being retired earlier than other public servants with disabilities, amounts to discrimination. The Petitioner was treated differently compared to public servants with disability. 31.In the upshot, the court held the petitioner’s right not to be discriminated against on account of disability, and to be accorded the right of a person with disability were violated by the retirement on account of mandatory age of 60 years instead of the 65 years of public servants with disability. Whether the petitioner is entitled to relief sought. 32.The petitioner sought for the following reliefa.A declaration that the Petitioner's retirement is indeed wrongful, unlawful, and grossly an unfair retirement and a violation of the Petitioner's Constitutional rights and fundamental freedoms and the same is an abuse of the fair labour practices under Articles 41(1) of the Constitution of Kenya (2010) and further violates the provisions of section 70(1)(b) of the Public Service Commission Regulations 2(2020).b.That a declaration be made that the failure by the 1st, 2nd and 4th Respondents to extend the Petitioner's retirement age from 60 years to 65 years in total disregard of the stated government policy amounts to violation of his right to be discriminated against on the ground of health, age and disabilityc.That a declaration that being dully registered as person with disability, he is entitled to serve until the age of 65 yearsd.That a declaration that the Retirement Notice dated 07 September, 2020 from the 1st Respondent and the letter dated 13th February 2020 declining the recommendation of the Petitioner to retire at the age of sixty-five (65) years are null and void.e.That a declaration that the Petitioner is entitled to payment of Ksh. 12,213,000 tabulated at the rate of Ksh. 203,550 per month being what the Petitioner earned per month in salary and amount in arrears ff.) A declaration that the Petitioner is entitled to pension payments for the extra 5 years that he was unlawfully denied but legally entitled tabulated at the rate of the pensions department and the prevailing law.f.An order do hereby issue directing the payment of such unpaid salary and pension payments. That a declaration be made the Petitioner be compensated a total sum of 10,000,000 Ten Million Kenya shillings as general damages for his incorporeal losses or any other amount the court may deem fit and appropriate to grant for violation his rights and fundamental freedoms under Article 27(4), (5), (6) and (7) of the Constitution of Kenya and Article 7 of the Universal Declaration of Human Rights (1948).g.That the Petitioner be awarded Ksh. 10,000,000 in general damages or as the court may assess.h.That the Petitioner be awarded nominal damages as the court may assess.i.That the Petitioner be awarded aggravated damages as the court may assessj.Costs of the petitionk.Interests on prayers (g),(h) and (i) at courts rate till payment in full. 31.The court having held the decision of the 1st 2, and 3rd to retire the petitioner at 60 years instead of 65 years as a person with disability as unlawful and discriminative allows the petition as follows-a.A declaration is issued that the Petitioner's retirement is indeed wrongful, unlawful, and grossly an unfair retirement and a violation of the Petitioner's Constitutional rights and fundamental freedoms and the same is an abuse of the fair labour practices under Articles 41(1) of the Constitution of Kenya (2010) and further violates the provisions of section 70(1)(b) of the Public Service Commission Regulations 2(2020).b.A declaration is issued that the failure by the 1st, 2nd and 4th Respondents to extend the Petitioner's retirement age from 60 years to 65 years in total disregard of the stated government policy amounts to violation of his right to be discriminated against on the ground of health, age and disabilityc.A declaration that being dully registered as person with disability, he is entitled to serve until the age of 65 yearsd.A declaration that the Retirement Notice dated 07 September, 2020 from the 1st Respondent and the letter dated 13th February 2020 declining the recommendation of the Petitioner to retire at the age of sixty-five (65) years are null and void. 33.On finding violation of constitutional rights the court is granted power to issue the following order section 12 of the Employment and Labour Relations Act –‘(3)In exercise of its jurisdiction under this Act, the Court shall have power to make any of the following orders-(i)interim preservation orders including injunctions in cases of urgency;(ii)a prohibitory order;(iii)an order for specific performance;(iv)a declaratory order;(v)an award of compensation in any circumstances contemplated under this Act or any written law;(vi)an award of damages in any circumstances contemplated under this Act or any written law;(vii)an order for reinstatement of any employee within three years of dismissal, subject to such conditions as the Court thinks fit to impose under circumstances contemplated under any written law; or(viii)any other appropriate relief as the Court may deem fit to grant.’ 34.The petitioner sought the following orders:a.That a declaration be made that the Petitioner is entitled to payment of Ksh. 12,213,000 tabulated at the rate of Ksh. 203,550 per month being what the Petitioner earned per month in salary and amount in arrearsb.A declaration that the Petitioner is entitled to pension payments for the extra 5 years that he was unlawfully denied but legally entitled tabulated at the rate of the pensions department and the prevailing law.c.An order do hereby issue directing the payment of such unpaid salary and pension payments. 35.The court finds that it is trite that an employee can only be remunerated for work done. The petitioner filed his petition 2 years post the termination. The petitioner has been out for almost 6 years. The court finds that reinstatement to serve for 65 years is not a feasible remedy. The court then finds compensation is the most suitable remedy. The petitioner sought for the following –‘That a declaration be made the Petitioner be compensated a total sum of 10,000,000 Ten Million Kenya shillings as general damages for his incorporeal losses or any other amount the court may deem fit and appropriate to grant for violation his rights and fundamental freedoms under Article 27(4), (5), (6) and (7) of the Constitution of Kenya and Article 7 of the Universal Declaration of Human Rights (1948). That the Petitioner be awarded Ksh. 10,000,000 in general damages or as the court may assess.’ 36.On the compensation, the respondent submitted as follows:- On the Claim for General Damages -The claim for Kshs. 10,000,000/= as general damages for alleged psychological torture is not anchored on any established constitutional violation. It is settled law that constitutional damages are not awarded as a matter of course. A petitioner must plead and prove, with reasonable precision, the specific constitutional right violated and the manner of such violation. In the case of Gitobu Imanyara & 2 others v Attorney General Civil Appeal No. 98 of 2014 [2016] eKLR, the Court of Appeal held that the award of constitutional damages is discretionary and must be guided by the nature of the right violated, the circumstances of the case, and the 14 need for appropriate but not excessive compensation. The Court emphasized that such damages are not automatic and must be justified by clear proof of violation. The requirement for precision in constitutional pleadings was firmly laid down in Anarita Karimi Njeru v Republic [1979] KEHC 30 (KLR), where the Court held that a party alleging violation of constitutional rights must set out with reasonable precision the right infringed and the manner of infringement. This principle has been consistently affirmed, including in Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others, where the Court of Appeal reiterated that constitutional petitions must meet a threshold of specificity and evidentiary substantiation. The Petitioner herein has not met that threshold. Further, your Lordship, the court in Communications Commission of Kenya & 5 others v Royal Media Services Ltd & 5 others [2014] KESC 53 (KLR) underscored that not every grievance should be elevated to a constitutional question where adequate statutory mechanisms exist to address the dispute. The Petitioner has not demonstrated any act amounting to torture, cruel, inhuman, or degrading treatment within the meaning of Article 29 of the Constitution. In the present case, the Petitioner’s retirement followed a structured medical assessment process conducted by a duly constituted Medical Board in which he participated. There is no evidence of abuse, coercion, humiliation, or degrading conduct. A lawful medical retirement, undertaken pursuant to statutory regulations, cannot amount to torture or inhuman treatment. Additionally, courts have consistently held that damages must be compensatory and proportionate, not speculative or punitive. In Gitobu Imanyara & 2 others v Attorney General Civil Appeal No. 98 of 2014 [2016] eKLR, the Court of Appeal cautioned that constitutional awards must be appropriate and guided by sound judicial principle. The Petitioner has produced no medical reports, psychiatric evaluations, or expert evidence linking the alleged psychological suffering to any unlawful act by the Respondents. In the absence of proof of injury and causation, the claim for Kshs. 10,000,000/= is speculative and legally untenable. Accordingly, there exists neither a factual nor a legal basis upon which this Honourable Court can properly exercise its discretion to award constitutional damages. 37.The court upheld the guidance on award of compensation as stated in Gitobu Imanyara & 2 others v Attorney General Civil Appeal No. 98 of 2014 [2016] eKLR. The court held there was a violation of the right under article 27 of discrimination on account of disability, there was a violation of right to fair labour practice under article 41, the petitioner having been denied 5 years of service where he would have earned money to cushion his disability challenges and earn enhanced pension, and violation of right s of person with disability as stated in Article 54 of the constitution. The court finds that the petitioner is entitled to be compensated for the violations. He was asked for Ksh. 10 Million. The respondent did not offer an alternative figure. Taking into account the violations and the fact that it was not practical to reinstate the petitioner to employment, which was his right, I award the petitioner against the 1st ,2nd, and 3rd respondents, jointly and severally, compensation of Kshs. 5,000,000/- payable with interest at the court rate from the judgment date if not settled within 60 days of this Judgment. The 4th respondent is struck out of the suit as the 1st respondent is independent, and there is no shared responsibility in the cause of action. Conclusion 38.The court allowed the petition and entered judgment for the petitioner against the 1st,2nd and 3rd Respondents jointly and severally as follows: -a.A declaration is issued that the Petitioner's retirement is indeed wrongful, unlawful, and grossly an unfair retirement and a violation of the Petitioner's Constitutional rights and fundamental freedoms and the same is an abuse of the fair labour practices under Articles 41(1) of the Constitution of Kenya (2010) and further violates the provisions of section 70(1)(b) of the Public Service Commission Regulations 2(2020).b.A declaration is issued that the failure by the 1st, 2nd and 4th Respondents to extend the Petitioner's retirement age from 60 years to 65 years in total disregard of the stated government policy amounts to a violation of his right to be discriminated against on the ground of health, age and disabilityc.A declaration is issued that being duly registered as a person with disability, he is entitled to serve until the age of 65 yearsd.A declaration is issued that the Retirement Notice dated 07 September 2020 from the 1st Respondent and the letter dated 13th February 2020 declining the recommendation of the Petitioner to retire at the age of sixty-five (65) years are null and void.e.Compensation for violation of Articles 27 and 41 of the Constitution for the sum of Kshs.5,000,000 (Five Million) payable with interest at the court rate from the judgment date if not settled within 60 days of this Judgment.f.Costs of the petition. 39.The 4th respondent is struck out of the suit as the 1st respondent is independent and there is no shared responsibility in the cause of action. 40.It is so ordered. DATED, SIGNED, AND DELIVERED IN OPEN COURT AT NAIROBI THIS 19TH JUNE, 2026.JEMIMAH KELI,JUDGE.In the Presence of:Court Assistant: Otienopetitioner- Odero Advocate2, 3, and 5 Respondents – Jepkemei Advocate