Labour Court Puts PSC on the Spot

by Lawyer Wanz

A labour court judge has put the Public Service Commission (PSC) on the spot for failing to manage succession plans and instead opt for retention of civil servants who have attained the mandatory retirement age.

Employment and Labour Relations judge Maureen Onyango said although the law allows PSC to extend contracts to civil servants who have reached 60 years but with specific skills, the window is prone to abuse and hinders upward mobility for junior officers.

In the case Stephen Ochieng’ sued PSC and the Lands Cabinet Secretary for extending the term of Mr Edward Kosgey on a ‘local arrangement’ for two years.

Mr Kosgey’s tenure as Director of Land Administration was supposed to end on July 1, 2019.

The officer wrote to the ministry about his exit but was notified by PSC on June 26, 2019, that a decision had been made to extend his tenure by two years.

Mr Ochieng then challenged the move arguing that allowing civil servants to work beyond the mandatory age of retirement is an anathema to the rule of law and runs afoul to the national values and principles of governance.

Further, he said the engagement blocks the advancement of other deserving Kenyans and is discriminatory against other public servants who are forced to retire upon attaining 60 years.

The Ministry of Lands admitted that there were serious succession gaps, particularly at senior management levels in the Department of Lands Administration.

The court heard that the request was for purposes of ensuring that there was no disruption in service delivery after the exit of Mr Kosgey.

In the judgement Justice Onyango said that since the contract has since lapsed, the orders sought were redundant. She also said there was nothing unlawful about such plans.

But the judge said the window is vulnerable to abuse and could be used to reward loyalists or keep cronies in public service at the expense of qualified persons.

I commend the petitioner for his valiant efforts in keeping the Public Service on its toes to ensure that values are adhered to and there are succession plans to meet the progressive requirements of the Constitution,” she said.

The court observed that the ministry and PSC had not demonstrated that they made efforts to find qualified persons within and without the public service through a competitive process in good time.

The request for engagement of Kosgey therefore seems to be a knee jerk reaction to poor succession management,” Justice Onyango said

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