• The retirement date as imposed by the JSC is unreasonable and illegitimate.
• Githinji was not notified that late registration of birth had to be made through the Judiciary.
Image: JACK OWUOR
A labour court has quashed the decision by the Judicial Service Commission to retire Court of Appeal Judge Erastus Githinji prematurely.
Employment and Labour Relations Judge Byrum Ongaya ruled that the retirement date as imposed by the JSC to be June 1, this year, was unreasonable and illegitimate.
“The court finds that Githinji’s date of birth is December 30, 1949, and he will attain 70 years on December 30, 2019, and not on June 1, 2019. Thus the date of retirement as imposed to be June 1, 2019, is found to have been unreasonable and illegitimate,” Ongaya said.
Court documents showed that the Chief Registrar of the Judiciary conveyed to Githinji that their records indicated he would attain the mandatory retirement age of 70 years on June 1, 2019.
The letter indicated the documents the appellate judge was to submit for the computation of his pension benefits. It further thanked him for the distinguished service he had rendered to the Judiciary for 43 years and 10 months.
Githinji had told the court that there were no records indicating that he was born on June 1, 1949.
He explained that in 1999 a need arose for him to indicate his exact date of birth when he was applying for a passport and he, therefore, applied for a certificate of birth on October 29. The birth certificate was issued showing that his date of birth was December 30, 1949.
He was not notified that late registration of birth had to be made through the Judiciary and the Registrar of Births and Deaths did not require such a procedure to be followed. Since then, his official date of birth has been honoured as being December 30, 1949.
It’s for those reasons that the court compelled the JSC, CRJ and other relevant authorities to give effect to his certificate of birth dated October 20, 1999, certifying that he was born on December 30, 1949.
The labour court judge further barred the JSC and CRJ from acting on or implementing the government policy directions dated November 15, 1982; November 28, 1990; September 25, 2008, and October 14, 2013, in making their decision to retire Githinji.
The policy with regard to the determination of an officer’s age for purpose of retirement was set out in a November 1958 circular.
The circular communicated that the dates of birth were voluntarily declared by officers on first appointment and shall be maintained without variation. It was further decided that the ministry would no longer consider any requests for variation of dates of birth and that heads of Human Resource Management divisions should ensure that dates of birth as declared on first appointment were maintained without variation.
The labour court judge found the circular to be unlawful in prescribing a step in acquiring the birth certificate.
He held that it was unnecessary and unlawful to bind Githinji to such unlawful policy that was inconsistent with the statutory provisions on the procedure for applying for the birth certificate.
“In the present case, the court has found that the policies as relied upon by the JSC and CRJ applied to civil service and not the judicial service and, in any event, the policies as relied on were ultra vires the clear provisions of the Births and Deaths Registration Act and the Evidence Act and therefore null and void,” he said.