The Court of Appeal in Nairobi has dismissed a petition by Engineer Peter Njaggah, a former Director of Standards, Licensing, Advocacy and Public Education at the Water Services Regulatory Authority (WASREB).

Njaggah sought to extend his retirement age from 60 to 65 years on account of being a registered person with disability.

He moved to the appellate court after the Employment and Labour Relations Court (ELRC) dismissed his earlier petition. 

He argued that the trial court erred in prioritising his employment contract over statutory provisions that provide for later retirement for persons with disabilities.

Njaggah was employed on a five-year contract or until he turned 60, whichever came first. 

He argued that he had a legitimate expectation to retire at 65 years as provided for under Regulation 70(1)(b) of the Public Service Commission Regulations, 2020, and the Persons with Disabilities Act.

In his appeal, Njaggah maintained that his status as a registered person with disability had been formally confirmed on December 9, 2022, just weeks before his scheduled retirement.

He cited a medical report, disability registration certificate and a Kenya Revenue Authority tax exemption as evidence.

Njaggah contended that he had a legitimate expectation that with the new changes in law, his retirement age ought to have been changed to December 29, 2027.

However, the 1st and 2nd respondents, who were WASREB’s board and CEO, argued that the employment contract was clear and that Njaggah had not disclosed his disability status at the time of recruitment. 

They claimed his registration came too late and was never factored into the official human resource database for at least three years, as required by Regulation 70(2)(b).

The court agreed, stating: “It is not disputed that the Public Service Commission never approved the extension of the appellant’s retirement age beyond 60 years.”

Justices Patrick Kiage, Weldon Korir and Joel Ngugi emphasised that while disability can occur at any time, formal procedures must be followed to benefit from the extended retirement age.

The three-judge bench ruled that Njaggah did not meet the regulatory threshold for retirement at 65. 

“Absent compliance with the Public Service Commission Regulations, [the appellant] cannot therefore demand a retirement age of 65 years,” the court held.

The court also rejected Njaggah’s claim of legitimate expectation, ruling that there was no change in law after his contract was signed.

“By the time he signed the employment contract on November 5, 2020, Circular MSPS/HRM/2/2/2/VOL.II (21) had long been issued on May 29, 2012, whereas the Public Service Commission Regulations, 2020 are dated January 14, 2020,” the court said.

“The law he relied on in support of his petition was therefore in place at the time he signed the contract.”

In conclusion, the appeal was dismissed in full. 

However, recognising Njaggah’s disability status and the fact that he is no longer in gainful employment, the court ruled that each party would bear their own legal costs.