https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1974

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI** **PETITION NO. E192 OF 2026** **FELIX KIRUJI MURITHI 1ST PETITIONER** **WINNIE NJOKI NGUYU 2ND PETITIONER** **VERSUS** **KENYA INSTITUTE FOR PUBLIC POLICY RESEARCH** **AND ANALYSIS (KIPPRA) 1ST RESPONDENT** **THE PUBLIC SERVICE COMMISSION 2ND RESPONDENT** **THE HON. ATTORNEY GENERAL 3RD RESPONDENT** **RULING** The ruling relates to an application filed by the petitioners dated 11 June 2026 under the provisions of the Constitution, section 12(3) of the Employment and Labour Relations Court Act, Rule 17 of the Employment and Labour Relations Court (Procedure) Rules and seeking orders: *Pending the hearing and determination of this petition, the court be pleased to issue a conservatory order suspending, staying and/or restraining the implementation of the retirement notices dated 7 November 2025 issued to the petitioners and restraining the respondents form retiring, removing, replacing, declaring vacant the offices of, recruiting replacements for or otherwise interfering with the petitioners’ employment o account of the said retirement notice.* The application is supported by the affidavits of the petitioners, on the grounds that they are long-serving officers of the 1st respondent within the Knowledge Management Division and have served for 20 and 15 years, respectively. Throughout the service, the petitioners have been treated and classified as members of the technical cadre of staff, including librarians, research support, knowledge management, and information preservation and dissemination. The terms and conditions of employment for the petitioners provided that they were entitled to retire at age 65, a practice informed by the 1st respondent's historical practice. This is based on the internal policies, career guidelines, and employment framework, and consistent with the treatment accorded to other officers similarly placed as the petitioners. In the affidavits, the petitioners aver that despite the respondents' knowledge of the internal policies and practices, the 1st respondent issued the petitioners' retirement notices, retiring them at age 60, thereby departing abruptly from the known framework, practice, and understanding that have consistently been applied to other employees. The petitioners aver that, upon notice dated 7 November 2025, they formally challenged the matter with the 2nd respondent through a request setting out the factual, institutional, and professional basis for their review of the decision, on the ground that retirement is at 65, not 60. The 1st respondent noted that this was inconsistent with internal practice and hence raised an appeal with the 2nd respondent, providing the background and the need for retirement at age 65. The petitioners aver that the 2nd respondent rejected the appeal without giving reasons. The petitioners applied for a review, which is still pending, and, taking note of the timelines, found it necessary to file the petition. These proceedings seek to preserve employment pending the hearing of the petition. The petitioners also took into account that the 2nd petitioner was due to retire on 30 June 2026 in terms of the notice issued. The 1st petitioner is due to retire on 2 October 2026 unless the orders sought herein are allowed. Thus, the substratum of the petition will be lost unless the court allows the interim orders. The petition has a high chance of success, including an arguable question concerning discrimination, fair Labour practices, legitimate expectation and fair administrative action. The 2nd respondent has failed to hear the petitioners on the merits, resulting in summary action without giving any reasons. Forcing the petitioners to retire 5 years earlier than the practice is will put them at a serious disadvantage and cause them irreparable hardship. Since they have been working for the 1st respondent, they will continue to offer their services. The balance of continence thus supports the petitioners. In reply, the 1st respondent filed the Replying Affidavit of Monica Sifuna, the deputy director, human resource management and administration, who denied the claims made by the petitioners and that as a State Corporation, the 1st respondent is governed under the law and the mandate of the 2nd respondent in so far as the exercise of human resource functions. The general public service policy and prevailing government circulars and directives governing the mandatory retirement age in public service require public officers to retire upon attaining 60 years, except certain categories of officers, including persons with disabilities and researchers working in academic and research institutions, who retire at 65 years. Sifuna avers that clause 13.7.2 of the 1st respondent's human resource policies and procedures manual, 2020 (the HR Policy) provides that the mandatory retirement age for all officers serving within the institute is 60 years. The exception is for researchers and persons with disabilities who retire at age 65. These requirements are also set out in the 1st respondent's 2025 HR Policy. Sifuna avers that the petitioners are employees of the 1st respondent within the knowledge management division. The functions thereof entail promoting a culture of knowledge management and library documentation, providing publication services, and maintaining the website, including its databases. The 1st respondent's career guidelines, 2020, relied upon by the petitioners, classify technical staff as researchers based on competences including the development of microeconomic and sectoral models; authorship of policy papers, working papers, and discussion papers; leading authorship of statutory reports; peer review; and methodological design. This classification is retained in the 1st respondent's career guidelines that were approved by the 2nd respondent in December 2025 and subsequently updated in April 2026. Sifuna avers that the career guidelines confirm that the petitioners are in the knowledge management department. They have not been appointed or classified as researchers and hence do not qualify to retire at 65 years as alleged. Under the public service, the mandatory retirement age for all cadres is 60 years. Following the retirement notices, the petitioners raised concerns that there was an institutional practice under which knowledge management officers were technical staff and hence eligible to retire at 65 years. A review of the letters of appointment and contracts of employment confirms that the petitioners were not employed in the category of technical staff defined as researchers within the meaning of the guidelines; hence, the retirement age is 60 years, per the terms applicable to public officers. The 1st petitioner was appointed as an editor on 18 December 2001, and the 2nd petitioner was appointed a librarian on 1 September 2010. The current contracts of employment expressly provide for terms and conditions that are not technical. In recognition of the supportive role the knowledge management staff offer to the 1st respondent, acting in good faith, it referred the matter to the 2nd respondent through a letter dated 24 February 2026, an appeal seeking permission for knowledge management officers to retire at 65 years. On 15 April 2026, the 2nd respondent declined the appeal, stating that Knowledge management officers do not fall within the category of lecturers contemplated in the Public Service Commission Circular No. PSC/GEN/22/VOL/ XII (99) dated 2 March 2026. Sifuna avers that the previous placement of the knowledge management department within the integrated department was intended to facilitate coordination between the institute’s research and knowledge functions. Such placement did not alter or expand the petitioners' defined functions to include researchers. The claim of a legitimate expectation is unfounded in law and fact. Such expectation cannot override prevailing statutory and regulatory provisions on the mandatory retirement age. All the actions taken with regard to the petitioners are within the law and institutional framework. Thus, there is no differentiation of the petitioners from other employees, as alleged, under Article 27 of the Constitution or Section 5 of the Employment Act. The retirement notices issued to the petitioners are not unilateral or arbitrary as alleged. The appeal to the 2nd respondent was made in good faith. A response has since been issued, and the petitioners have applied for a review. However, they also filed these proceedings, halting the review process before the 2nd respondent. These proceedings are premature and should have waited for the review process to complete; hence, the application should be dismissed with costs. In reply, the 2nd respondent filed the Replying Affidavit of Paul Famba the secretary and chief executive officer, who avers that the Commission is the constitutional body established under article 233 of the constitution with mandate to establish or abolish of offices in the public service, appoint persons to hold or act in those offices and the undertake disciplinary control and the removal f persons holding or acting in those office. The 2nd respondent is also regulated by the Public Service Commission Act (PSC Act) and, under section 92(2), is mandated to determine the terms and conditions of service, including the retirement age applicable to different categories of public officers and staff. The 2nd respondent is employed under Regulation 70 of the Public Service Commission Regulations to fix and vary the retirement age, subject to the mandatory baseline of 60 years prescribed under section 80 of the PSC Act. The courts have affirmed the mandate and functions of the PSC, including the retirement age of 60 years. In **Gitau v Attorney General & 2 others Petition E085 of 2024,** the court held that the legitimate workforce planning objectives override any contractual or collective bargaining agreement to the contrary where the mandatory retirement age is 60 years. In **Njaggah v Board of Directors of Water Services Regulatory Authority & 2 others Civil Appeal E108 of 2024**, the court held that in the absence of a formal PSC determination approving an extension, no officer or institution can unilaterally extend the retirement age. Famba averred in his Affidavit that the exemption from the 60 year mandatory retirement age applies to specific categories of staff, including lecturers, research scientists, and persons possessing rare skills and competencies not readily available in the market. The employment within scientific or technical institutions does not, without more, bring an officer within the category entitled to the enhanced retirement age. It depends on the nature of the duties performed, as held in **Peter Macathi Muigai v Cabinet Secretary for Industrialisation and Enterprise Development & 4 others [2016] KEELRC 1751 (KLR)**. The court held that the position of chief executive officer for a research and development institute is managerial and administrative in character. The mandatory retirement age is 60 years. Famba avers that the 1st respondent is a state corporation and is governed under the mandate of the 2nd respondent in terms of human resource management and planning. The 2nd respondent's approved career guidelines and HR policies apply to the staff. The employees in the knowledge management department are not researchers. Their terms and conditions of service are materially different from those of other employees under research. Hence, the petitioners cannot be defined as researchers who retire at 65 years. The 2nd respondent has since issued and approved Career Guidelines through a decision dated 15 April 2026. The 1st respondent rationalised staff establishment and aligned it with the approved. The 1st respondent filed an appeal seeking to retain the petitioners in service; however, the 2nd respondent assessed it and declined it. The decision to decline is based on the mandate of the 2nd respondent, the constitutional provisions, the PSC Act, the HR policy and the career guidelines. The petitioners have since lodged an application seeking a review. However, pending a determination, the petitioners moved to court, thus halting the same. Review before the PSC cannot proceed once the petitioners have invoked the judicial route. The petition is thus premature and without merit for failure to exhaust available dispute resolution mechanisms. The petitioners' application is thus without merit and should be dismissed. **Determination** In the interim, the petitioners seek a conservatory order suspending, staying, and restraining the implementation of the retirement notice issued to the 2nd petitioner, thereby preventing the 1st respondent from retiring or interfering with the 2nd petitioner's employment pending the hearing of the petition. Further, the petitioners seek that the respondents be restrained from interfering with the 2nd petitioner's employment upon the retirement notice dated 7 November 2025. The issuance of a conservatory order is at the discretion of the court. However, such discretion should be exercised judicially and in accordance with principles set out in judicial precedent. In **Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others S.C. Application No. 5 of 2014,** the Supreme Court held that conservatory orders should be granted on the inherent merits of a case, considering public interest and constitutional values. In **Judicial Service Commission v Speaker of the National Assembly & Another [2013] eklr**, the court emphasised that conservatory orders are remedies in rem, designed to uphold the court's adjudicatory authority and ensure the proper functioning of public agencies. In **Barclays Bank of Kenya Limited v Banking Insurance & Finance Union [2026] KECA 851 (KLR)** and **Board of Management of Uhuru Secondary School v City County Director of Education and 2 others (2015) eKLR,** the court summarized the principles for the grant of conservatory orders: 1. *The need for the applicant to demonstrate an arguable prima facie case with likelihood of success and to show that in the absence of the conservatory orders he is likely to suffer prejudice.* 2. *The secondary principle is whether the denial of the conservatory order will enhance the constitutional values and objects of the specific right or freedom in the Bill of Rights.* 3. *The court should consider whether, if an interim conservatory order is not granted, the petition or its substratum will be rendered nugatory.* 4. *Whether the public interest would be prejudiced by a decision to exercise discretion to grant or deny a conservatory order.* These distinct and sequential conditions for the award of a conservatory and interlocutory injunction must be found present before the order can be issued. It is common cause from the pleadings and submissions that the 1st respondent employs the 1st petitioner as deputy director, knowledge management, while the 2nd petitioner is the assistant director, library services. The 1st respondent issued a retirement notice dated 7 November 2025 to the petitioners to take effect from 4 October and 30 June 2026, respectively. The basis of the retirement notice was that they had attained the mandatory retirement age. It is also not contested that the 1st respondent appealed to the 2nd respondent on 24 February 2026. The appeal was made on a without prejudice basis and, as confirmed in the Replying Affidavit of Monica Sifuna, it was made in good faith, taking into account the petitioners' long service. On whether there exists a prima facie case to justify the grant of the orders sought, as confirmed by the 1st respondent in the Replying Affidavit of Monica Sifuna dated 26 June 2026, the petitioners were issued with retirement notices in November 2025. Hence, the operative HR policy and career guidelines at the time were the 2020 policies. Subsequently, the 1st respondent reviewed the HR policy and career guidelines in December 2025 and in April 2026, with the 2nd respondent's approval. The current HR policy and career guidelines must be audited vis-à-vis the HR policy in effect at the time the retirement notices were issued. Indeed, the basis of the 1st respondent's formal appeal to the 2nd respondent, seeking to retain the petitioners, is the HR policy and career guidelines, 2020. The 2nd respondent has also since issued Public Service Commission Circular No. PSC/GEN/22/VOL/ XII (99) dated 2 March 2026. This was done while the 1st respondent's appeal was pending before the 2nd respondent. This appeal relates to the policy in place as of November 2025, before the subject circular was issued. Its application to the petitioners must be addressed on the merits. On whether the principles necessary for consideration for the grant of a conservatory order are present and whether these will enhance the constitutional values and objects of the specific right or freedom in the Bill of Rights, the petitioners have anchored their claim on the historical practices of the 1st respondent. The assertion is that the knowledge management department is an integral part of the organisation's technical support. Fundamentally, the petitioners emphasise that the 1st respondent's appeal to the 2nd respondent was based on the acknowledged role they play within the research team. Overall, the petition is premised on a legitimate expectation that the petitioners would retire at 65 years, not 60, in light of the longstanding and consistent practice applicable to technical officers within the 1st respondent. The claim is that officers serving in the technical cadre would retire upon reaching age 65. In addressing whether to issue a conservatory order in the given circumstances as herein sought by the petitioners, as referenced above in **Gatirau Peter Munya v Dickson Mwendwa Kithinji and Another**, the Supreme Court emphasized: *“Conservatory Orders” bears more decided public law connotations: for these orders are to facilitate ordered function within public agencies as well as to uphold the adjudicatory authority of the court in the public interest. Conservatory orders, therefore, are not, unlike interlocutory injunctions, linked to such private party issues as “the prospects of irreparable harm occurring during the pendency of a case, or “high probability of success” in the applicant’s case, for orders of stay.* The petitioners have employment contracts. Their terms and conditions are defined. They also do not contest that they are governed by the framework for public officers regulated by the mandate of the 2nd respondent. Under the PSC Act read with Regulation 70 of the Public Service Commission Regulations, the mandatory retirement age is subject to the mandatory baseline of 60 years prescribed under section 80 of the PSC Act. The 1st respondent's appeal to the 2nd respondent on the matter addressed was rejected; the petitioners' positions were confirmed; and the court's assessment of the records on file identifies a public law issue that should be addressed before invoking the conservatory order rule. Ultimately, the balance of continence thus serves the respondents. Whereas the petitioners may have a cogent case as addressed above, the nature of the orders sought shall be analysed in light of applicable HR practices, the PSC Act, and, fundamentally, the employment contracts and positions held. A conservatory order allowing continuation of service beyond 60 years shall not be issued in the interim. Whereas, upon determination of the petitioner, the petitioner has sought various remedies to allow an extension of the retirement age and to permit the court to take evidence and consider the overriding policy, legal, and constitutional mandates; therefore, it will be necessary. This will foster justice. In **Anne Kinyua v Nyayo Tea Zones Development Corporation and 3 others [2012] eKLR**, the court addressed the terms and conditions of engagement of a senior staff member, such as the chief executive officer, and whether an extension of those terms was necessary. In **Teresa Carlo Omondi v Transparency International-Kenya [2017] eKLR**, the court considered the conditions that, if present, would give an employee a reasonable expectation that the employer would renew a fixed term. Whereas the facts differ for this petition herein, the principle is that an employee is regulated under the primary record, the employment contract, the law and the constitution. Where these are present, they give primacy in consideration. Equally, for a legitimate expectation to suffice, particularly before the court can hear a matter on the merits, the exceptional circumstances must be present. It will be necessary to take evidence. Whereas the court allowed the petitioners to remain in employment on 2 July 2026, such time for the 2nd petitioner shall be compensated. The court will hear the petition on a priority basis, taking into account that the 1st petitioner's notice to retire takes effect in October 2026. **Accordingly, the orders sought shall not issue at this interim stage. The parties will prepare for the hearing of the main petition. The 1st respondent shall compensate the 2nd petitioner for work done until the date of this ruling. Costs shall abide by the outcome of the petition.** **Delivered in open court this 9th day of July 2026** **M. MBARŨ** **JUDGE** **In the presence of:** **Court Assistant: Kemboi** ……………………………………………… and …………………………………..………