https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1413

Ndurumo v University of Nairobi & another (Cause 88 of 2023) [2026] KEELRC 1413 (KLR) (15 May 2026) (Ruling) Neutral citation: [2026] KEELRC 1413 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Cause 88 of 2023 JW Keli, J May 15, 2026 Between Professor Michal Ndurumo Petitioner and The University Of Nairobi Claimant and Kenya National Commission On Human Rights Respondent Ruling 1.The petitioner is a professor. He was also a person registered as having disabilities, being deaf. On attaining the mandatory retirement age of 70 years for professors, the University of Nairobi, his employer, retired him. The petitioner was aggrieved and referred the dispute to the Public Service Commission, which vide decision dated 28th February 2023, held that the government policy is that public officers with disabilities retire 5 years after the prescribed retirement age. The prescribed retirement age for professors with disabilities is thus 75 years. The commission stated, “Professor Ndurumo, as a person with disability, registered with the council, is entitled to retire five years after”. MN2. The university did not comply with the decision of the Commission, leading to the instant petition dated 21st March 2023. The court vide Judgment of Nduma, J (as he then was) issued the following Order whose content and scope is subject of the instant ruling- ‘b. An order of Mandamus is issued directing the respondent to review the petitioner’s years of service by 5 years from the date he was retrenched in accordance with the direction of the public service commission in the letter dated 28th July 2022 so as to retire upon attaining 75 years of age” 2.The Respondent did not comply. The petitioner filed the instant application seeking citation and committal to civil jail of the Vice Chancellor, Prof. Margaret Hutchinson, not exceeding six months, or a fine for disobedience of the Order of Mandamus reproduced above. 3.The application was supported by an interested party, KNHRC, under the affidavit of Dr. Bernard Mogesa, who stated he was the CEO of the Commission. While the application was pending, the respondent filed an application dated 30th January 2026 seeking review of the order of mandamus, which is governed by Rule 74 of the Employment and Labour Relations Court Rules. This Rule allows a party aggrieved by a judgment, ruling, decree, or order of the court to seek a review, among other grounds, if the judgment requires clarification or for any other sufficient reason. 4.The respondent submitted that the petitioner had interpreted the Order of Mandamus as meaning he was reinstated from 10th April 2022 and was entitled to remuneration from that date after resuming his service. The respondent contended that no Order to that effect had been issued. That the petitioner's position would mean public funds are paid for unrendered services. The respondent sought a review of the terms of the judgment so that the petitioner would not lose the 5 years, but instead render service for 5 years from the date he accepts the offer of reinstatement. The petitioner rejected that position. 5.The Court holds the Order of Reinstatement was effective from the date of retirement, which the respondent accepts as 10th April 2022. The respondent failed to comply, resulting in an Order of Mandamus. The Order of Mandamus, it is true, did not specify that salary would be paid upon reinstatement. This was perhaps because it was an apparent conclusion that, upon reinstatement, it would be regarded as continuous employment. The court found that the authorities cited by the respondent were irrelevant, as they pertained to anticipatory wages. The Court of Appeal, in the case of National Bank of Kenya v Mutonya (KECA 404), held that: "an order of reinstatement was warranted. Other reliefs attendant to reinstatement, which included the payment of salary and benefits for the period that the respondent was unemployed, was also payable-"The court upholds the above decision to hold that the Order of Mandamus of reinstatement included attendant remuneration for the entire period from the wrongful retirement date to the date of reinstatement. 6.The five years were continuous from the date of 70 years to 75 years, upon exhaustion of which the employment must cease in the public service for the respondent. The application dated 30th January 2025 is dismissed. 7.On the application dated 28th August 2025, in view of the clarification sought by the respondent and this ruling, the application is kept in abeyance for 30 days to allow the respondent an opportunity to comply. 8.Mention on 22nd June 2026 to confirm compliance or for the court to issue an Order of Citation of Contempt and Notice Show Cause, why the Vice Chancellor, University of Nairobi, should not be jailed or fined for non-compliance with the Order of Mandamus as the Accounting Officer. No order as to costs, taking into account the circumstances of the dispute. DATED, SIGNED, AND DELIVERED IN OPEN COURT AT NAIROBI THIS 15TH MAY, 2026.JEMIMAH KELI,JUDGE.IN THE PRESENCE OF:Court Assistant: OtienoApplicant: Victor KamauRespondent: Jepkemei holding brief ErediInterested Party: MaweuRespondent: Collins Omondi