Nairobi — Senior research scientists at the Kenya Medical Research Institute (KEMRI) have won a landmark legal battle, with the High Court ruling that those serving under a collaboration agreement with Jomo Kenyatta University of Agriculture and Technology (JKUAT) are entitled to retire at 74 years, not 65 as previously stipulated.
The ruling by Justice Hellen Wasilwa extends the benefits of the Universities Academic Staff Union (UASU) Collective Bargaining Agreement (CBA) to KEMRI staff, setting a significant precedent for employment terms in collaborative state institutions.
"A declaration that the Kenya Medical Research Institute's Human Resource Policy & Procedures, specifically Clause 13.1.1 (C) to the extent that it provides for retirement at the age of 65 for its academic staff, is unconstitutional, null and void,"
Retirement Age Rift
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The petition was filed by Dr. Shadrack Muya, an employee of JKUAT and the JKUAT-UASU Secretary, who sought to stop KEMRI and the Public Service Commission (PSC) from retiring Professor Scientists upon attaining the age of 65 years.
The central conflict was hinged on KEMRI Policy, where the Human Resource Manual of 2019 sets the mandatory retirement age for scientists at 65 years.
However, the CBA between UASU and the Inter-Public Universities Councils Consultative Forum (IPUCCF) sets the retirement age for Professors, Senior Lecturers, and Associate Professors at 74 years.
"The petitioner avers that the professor scientists had a legitimate expectation to work until they attained the age of 74 per the CBA duly registered and binding between all parties herein," Justice Wasilwa ruled.
KEMRI and the PSC argued that KEMRI is a state corporation and a research institute, not a university, and was therefore not a signatory to the CBA and not bound by its terms.
They maintained that KEMRI employees are public officers governed by the PSC Act and its regulations.
"The 1st Respondent avers that the Petitioner anchors the Petition on the Collective Bargaining Agreement between the Universities Academic Staff Union (UASU), Inter-Public Universities Councils Consultative Forum (IPUCCF) and the Federation of Kenya Employers (FKE), which it does not subscribe to and therefore not bound." 5"It relies on the doctrine of privity of contract and submits that it is not bound at all to any of the terms of the CBA," the respondents argued.
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Constitutional Rights
The Court, however, dismissed these arguments, focusing on the Memorandum of Agreement (MOU) signed between KEMRI and JKUAT on October 1, 2020, which allowed KEMRI to run specific JKUAT academic programs.
"My understanding of the MOU between JKUAT and the 1st respondent was to ensure faculty members were to be governed by the rules and regulations governing substantive appointments in the reciprocating institutions, and in this case the institution is JKUAT,"the ruling stated.
Justice Wasilwa interpreted the MOU's clause that provided for honorary or adjunct appointments to be made in accordance with the rules and regulations governing substantive appointments in the reciprocating institutions.
The Court found that by virtue of this understanding, the listed faculty members were subject to the JKUAT CBA agreement.
The court declared that KEMRI Professor Scientists and other academic staff have a legitimate expectation to work until the retirement age specified in the CBA.
Justice Wasilwa declared that purporting to retire an employee before their stipulated retirement age is a breach of their labour rights under Article 41 of the Constitution and is therefore null and void.
"In view of this finding, I find for the petitioner and declare that the 1st respondent Professor Scentists and other academic staff have a legitimate expectation to work until the retirement age spelt out in the CBA."
"Any purported imminent early retirement of the said Prof Scientists and other academic staff is unconstitutional,"she ruled.
