Introduction
1. The Petitioner is a trade union duly registered under the Labour Relations Act, 2007
2. The 1st Respondent is a Public University established under the Universities Act, No. 42 of 2012 responsible for all employment, human resource, administrative, and governance decisions affecting its teaching and non-teaching staff.
3. The 2nd Respondent, is the governing body of the 1st Respondent, established under the Charter issued pursuant to Section 20 of the Universities Act, 2012. It is described in the petition as the apex organ charged with the University's governance, policy direction and human resource management, including setting terms and conditions of service and overseeing recruitment, promotions and disciplinary processes.
4. The 3rd Respondent is the administrative and academic head of the 1st Respondent, appointed under the Universities Act and is responsible for the day-to-day management of the University.
5. The Petitioner filed the Petition dated 26th January 2026 against the Respondents invoking various Articles of the Constitution, sections of Fair Administrative Action Act and Employment and Labour Relations Court Act. It seeks the following reliefs:
a. A declaration be issued that the Respondents have violated the provisions of Articles 2, 3(1), 41, 47, and 232 of the Constitution of Kenya 2010, by attempting to unilaterally enforce a retirement age of sixty (60) years contrary to the registered CBA and the University’s Terms of Service.
b. A declaration be issued that any directive, notice, or policy issued by the Respondents purporting to reduce the retirement age of the Petitioner's members
from sixty-five (65) years to sixty (60) years is null and void, having no legal effect.
c. A declaration be issued that the Respondents are bound by the provisions of the registered Collective Bargaining Agreement (CBA) 2012/2013 and the University's
Terms of Service, including the provision on the mandatory retirement age of sixty-five (65) years and cannot unilaterally amend or override these terms.
d. An order of mandamus be issued compelling the Respondents to recognize and maintain the retirement age of sixty-five (65) years for all unionized employees as
stipulated under the registered CBA and University Terms of Service.
e. An order be issued directing the Respondents to withdraw, rescind and set aside any retirement notices, circulars, or administrative actions issued in contravention of the CBA 2012/2013 and the University's Terms of Service regarding retirement age.
f. A permanent injunction be issued restraining the Respondents, their officers, agents, servants, employees, or any persons acting under their direction or
authority, from enforcing, implementing, or giving effect to any retirement notices, orders, or directives including but not limited to Government Circular Ref. No.
OP/CAB.9/1 dated 16th June 2025-that seek to compulsorily retire any unionized employee of the 1st Respondent before attaining the age of sixty-five (65) years.
g. A permanent injunction be issued restraining the Respondents, their officers, agents, servants, employees, or any persons acting under their direction or
authority, from taking any action that effects the retirement of unionized employees of the 1st Respondent in contravention of the registered Collective Bargaining
Agreement (CBA) 2012/2013 and the University’s Terms of Service, which expressly provide for a retirement age of sixty-five (65) years.
h. An order be issued directing the 1st Respondent to withdraw, rescind, and set aside any notices or administrative actions issued in contravention of the CBA and University Terms of Service concerning retirement age, ensuring that all affected employees’ rights to retire at sixty-five (65) years are fully restored.
i. The costs of this Petition be awarded to the Petitioner.
6. The Petition is supported by the affidavit of Robinson K. Korir, the Branch Secretary of the Petitioner herein sworn on 15th December 2025.
7. The Respondents opposed the Petition vide the Replying Affidavit sworn on 6th February 2026 by Professor Kimutai Kimeli, the Registrar in charge of Administration.
The Petitioner’s case
8. The Petitioner avers that it is the duly recognized trade union representing the unionisable employees of the 1st Respondent. It contends that it engaged in collective bargaining negotiations with the 2nd Respondent culminating in the execution of a local Collective Bargaining Agreement.
9. The Petitioner states that the 2012/2013 CBA was duly executed on 22nd November 2013 and subsequently registered in accordance with the provisions of the Labour Relations Act. According to the Petitioner, by virtue of such registration, the CBA acquired binding legal force and became an integral part of the terms and conditions of service governing all unionisable employees of the 1st Respondent.
10. The Petitioner further avers that the 2012/2013 CBA contains, inter alia, Clause 22.1, which expressly provides that the compulsory retirement age for all unionisable employees of the 1st Respondent shall be sixty-five (65) years.
11. According to the Petitioner, Clause 22.1 is couched in clear, mandatory, and unequivocal terms, leaving no room for administrative discretion, interpretive uncertainty, or unilateral variation by either party to the Collective Bargaining Agreement. It provides: -
22.1 Retirement
(a) The compulsory retirement age shall be sixty-five (65) years
12. The Petitioner avers that the deliberate use of the mandatory term “shall” in Clause 22.1 unequivocally reflects the intention of the parties to prescribe the retirement age as a mandatory, binding, and non-derogable term of the Collective Bargaining Agreement. According to the Petitioner, the provision was consciously negotiated at arm's length and incorporated as a fundamental and inseparable term of the unionisable employees' conditions of service.
13. The Petitioner further avers that, in addition to the provisions of the 2012/2013 CBA, the 1st Respondent’s Terms of Service for Academic, Senior Library and Administrative Staff similarly affirm and reinforce the applicable retirement regime. In particular, Clause 27(b) provides as follows:
27(b) The compulsory retirement age for teaching staff shall be seventy (70) years and for non-teaching staff sixty-five (65) years.
14. The Petitioner contends that the Terms of Service are wholly consistent with the 2012/2013 CBA, thereby establishing a uniform institutional retirement framework under which unionisable non-teaching employees represented by the Petitioner are required to retire upon attaining the age of sixty-five (65) years.
15. The Petitioner further avers that the 1st Respondent has, over the years, consistently implemented the retirement age of sixty-five (65) years without dispute or deviation. According to the Petitioner, this longstanding practice is demonstrated by the payslips issued to unionisable employees, which, as at November 2025, reflected retirement countdowns based on a retirement age of sixty-five (65) years, thereby evidencing the 1st Respondent's continued recognition and implementation of the retirement provisions contained in the 2012/2013 CBA.
16. The Petitioner further asserts that numerous unionisable employees have retired upon attaining the age of sixty-five (65) years in accordance with the applicable contractual and statutory framework and that the retirement age of sixty-five (65) years has, crystallized not only as an express contractual term but also as a longstanding and consistent labour practice embedded in the administrative operations of the 1st Respondent.
17. The Petitioner therefore maintains that, in the absence of any lawful variation, amendment, or replacement of the 2012/2013 CBA in accordance with the procedures prescribed under the Labour Relations Act, the compulsory retirement age applicable to unionisable employees remains sixty-five (65) years.
18. The Petitioner avers that, notwithstanding the binding provisions of the 2012/2013 CBA, the 2nd Respondent, acting on behalf of the 1st Respondent, issued an internal memorandum dated 23rd June 2025 (Ref. UOE/A/VC/VC/001), notifying employees of the 1st Respondent of its intention to enforce a mandatory retirement age of sixty (60) years for public officers, including the Petitioner's unionisable members.
19. The Petitioner further avers that the impugned memorandum was founded upon Government Circular Ref. No. OP/CAB.9/1 dated 16th June 2025, which was subsequently noted and adopted by the 2nd Respondent during its 116th Special Meeting held on 23rd June 2025.
20. According to the Petitioner, the effect of the said Government Circular is to impose a mandatory retirement age of sixty (60) years upon public officers, including the unionisable employees represented by the Petitioner, thereby directly conflicting with the retirement provisions contained in the binding 2012/2013 CBA and the 1st Respondent’s Terms of Service.
21. The Petitioner avers that aggrieved by what it considered to be a unilateral and unlawful attempt to alter the agreed retirement age, through its Branch Secretary, Mr. Robinson Korir, it addressed a letter dated 30th June 2025 to the 3rd Respondent objecting to the proposed implementation of the memorandum.
22. The Petitioner contends that in the said letter, it challenged the legality, propriety and enforceability of the proposed reduction of the retirement age, contending that the Respondents could not lawfully rely on the Government Circular to vary or override the retirement provisions contained in the binding 2012/2013 Collective Bargaining Agreement.
23. The Petitioner avers that it reiterated that the retirement age constitutes a fundamental term and condition of service, painstakingly negotiated between the parties and protected under both the Labour Relations Act and Article 41 of the Constitution. The Petitioner maintained that any attempt to unilaterally reduce the retirement age to sixty (60) years would amount to an unlawful, unfair, and unconstitutional variation of the terms of employment.
24. The Petitioner avers that, notwithstanding its unequivocal objection and despite the continued validity and binding force of the 2012/2013 CBA as at 2nd December 2025, the Respondents proceeded to issue retirement notices based on the impugned Government Circular.
25. According to the Petitioner, the retirement notices sought to enforce a compulsory retirement age of sixty (60) years, thereby acting in direct contravention of the 2012/2013 CBA, the 1st Respondent's Terms of Service and the statutory protection accorded to registered collective bargaining agreements under the Labour Relations Act.
26. The Petitioner further avers that, on 2nd December 2025, the Respondents issued retirement notices to, among others, the following unionisable employees, requiring them to retire upon attaining the age of sixty (60) years notwithstanding their alleged contractual, collective, and statutory entitlement to retire at sixty-five (65) years:
a) Rebecca S. Makori (aged 60 years) – Secretary
b) Margaret N. Oduor (aged 61 years) – Nursing Officer
c) Linet N. Alfayo (aged 62 years) – Secretary
d) Henry Z Ongwae (aged 60 years) - Medical Laboratory Technologist
e) Kimosop Chepkwony (aged 62 years) - Public Health Officer
f) Costa Jeptoo (aged 60 years) - Secretary
g) David Thuo (aged 61 years) - Head Butcher Man
h) William Kemboi (aged 60 years) - Senior Accountant
i) Barnabas 0. Agar (aged 62 years) - Senior Accountant
j) Winnie Kottut (aged 63 years) - Senior Student Counsellor
k) John Ngetich (aged 63 years) – Accountant
27. The Petitioner asserts that upon learning of the issuance of the retirement notices on 3rd December 2025, its Branch Secretary promptly addressed a further demand letter dated 3rd December 2025 to the 2nd Respondent, formally protesting the impugned action and demanding the immediate withdrawal of the retirement notices in compliance with the applicable Collective Bargaining Agreement and the 1st Respondent’s Terms of Service.
28. The Petitioner contends that, despite receipt of the said demand and objection, the 2nd and 3rd Respondents failed to withdraw the impugned retirement notices and instead persisted in their intended course of action, thereby precipitating the institution of the present Petition to forestall the alleged violation of the Petitioner's members' constitutional and contractual rights.
29. The Petitioner further avers that the Respondents sought to justify the impugned retirement notices by relying on the National Collective Bargaining Agreement for the 2021–2025 cycle executed on 23rd November 2024 between the Inter-Public Universities Councils Consultative Forum (IPUCCF) of the Federation of Kenya Employers (FKE) and the Kenya Universities Staff Union (KUSU).
30. According to the Petitioner, Clause 4 of the said National CBA provides that the retirement age of members of the Kenya Universities Staff Union (KUSU) shall be:
i. Sixty-five (65) years for members of KUSU working in teaching laboratories, teaching workshops, and libraries
ii. Sixty-five (65) years for members of KUSU who are persons living with disabilities
iii. Sixty (60) years for all other members of KUSU
iv. The revised retirement age shall take effect from the date of execution of the Agreement.
31. The Petitioner avers that the Respondents relied on the foregoing provisions of the National CBA together with Government Circular Ref. No. OP/CAB.9/1 to justify the impugned retirement notices and to impose a blanket retirement age of sixty (60) years upon unionisable employees, in disregard of the subsisting 2012/2013 CBA. The Petitioner contends that such action was unilateral, arbitrary, unlawful, and contrary to the negotiated terms and conditions of service.
32. The Petitioner further contends that, even assuming, without conceding, that the 2021–2025 National CBA and Government Circular Ref. No. OP/CAB.9/1 were lawfully applicable to the determination of the retirement age, the 2012/2013 CBA remains the more favourable instrument within the meaning of section 26 of the Employment Act and therefore prevails by operation of law.
33. The Petitioner maintains that the 2012/2013 CBA remains valid, binding, and fully operative, having neither been revoked, amended, nor lawfully displaced. It therefore contends that the impugned retirement notices, having been issued in derogation of the said CBA, are unlawful, null and void, and constitute a violation of the right to fair labour practices guaranteed under Article 41 of the Constitution.
34. The Petitioner further avers that the Respondents' unilateral departure from the negotiated retirement framework, undertaken without consultation or agreement, has occasioned substantial prejudice to its members by disrupting established employment relations, undermining institutional certainty, and exposing employees to significant professional, financial, and personal anxiety.
35. The Petitioner further contends that the Respondents' actions have exposed its members to considerable financial prejudice. It avers that, for decades, employees structured their personal, financial, and professional affairs on the legitimate understanding that the applicable retirement age was sixty-five (65) years, and consequently entered into long-term financial commitments, including mortgages, personal loans, and development financing, in reliance upon that retirement framework.
36. The Petitioner therefore asserts that the Respondents' unilateral attempt to reduce the retirement age from sixty-five (65) years to sixty (60) years, contrary to the subsisting Collective Bargaining Agreement, the 1st Respondent's Terms of Service, applicable statutory provisions, and longstanding institutional practice, has exposed its members to severe and unforeseen financial hardship, undermined their economic security, disrupted their livelihoods, and occasioned considerable uncertainty and psychological distress.
37. The Petitioner avers that unless restrained by orders of this Court, the Respondents will continue to enforce the impugned retirement age, thereby causing irreparable harm to its members through the premature loss of employment, disruption of their financial security, and frustration of the legitimate expectations developed over many years of service.
The Respondent’s case
38. In response to the Petition, the Respondents admit having issued retirement notices to certain unionisable employees requiring them to retire upon attaining the age of sixty (60) years. They, however, deny that the notices were issued in contravention of the 2012/2013 Collective Bargaining Agreement or the University's Terms of Service.
39. The Respondents categorically deny that the impugned retirement notices were unlawful, unconstitutional, arbitrary, or in breach of the applicable Collective Bargaining Agreement. They contend that the notices were issued in strict compliance with the applicable law, Government policy, and the University's approved Human Resource instruments.
40. The Respondents aver that the mandatory retirement age in the Public Service and State Corporations, including public universities, is sixty (60) years, unless an extension is expressly granted in accordance with Government policy and approved by the relevant authorities.
41. The Respondents further state that the University of Eldoret is a public university established under the Universities Act and is therefore bound by Government circulars, directives, and policies. They contend that the impugned retirement notices were issued pursuant to Government Circular Ref. No. OP/CAB.9/1 dated 16th June 2025.
42. According to the Respondents, all members of staff were notified of the Government Circular through an internal memorandum Ref. No. UoE/A/VC/VC/001 dated 23rd June 2025.
43. The Respondents further contend that the retirement age of sixty-five (65) years relied upon by the Petitioner was neither absolute nor universally applicable and, in any event, could not override binding Government policy applicable to public institutions.
44. The Respondents acknowledge that the 2012/2013 Collective Bargaining Agreement was executed on 22nd November 2013 between the University of Eldoret Council, as employer, and the Kenya Universities Staff Union (KUSU), and that the Agreement was duly registered.
45. They nevertheless aver that the 2012/2013 Collective Bargaining Agreement has either expired, been overtaken by subsequent events, or is subject to prevailing Government policy, and therefore cannot be enforced in a manner inconsistent with the national retirement policy.
46. The Respondents further contend that any provision in the 2012/2013 Collective Bargaining Agreement purporting to prescribe a retirement age of sixty-five (65) years without Government approval would be unlawful, unenforceable, and incapable of binding the Respondents.
47. The Respondents state that, at a Special Meeting of the University Management Board held on 9th October 2025, it was resolved that employees affected by the Government Circular be issued with one year's notice of their impending retirement in accordance with the applicable Terms of Service.
48. The Respondents further aver that the affected employees were duly served with retirement notices in accordance with established human resource procedures and were afforded sufficient notice to prepare for their exit from service.
49. It is further averred that, during its 57th Ordinary Meeting held on 10th November 2025, the University Council considered Council Paper No. HRC133 relating to the implementation of the Government Circular on retirement age and approved the issuance of retirement notices to the affected employees.
50. The Respondents state that the University Council is the supreme governing organ of the University, charged with overall policy formulation, strategic oversight, and institutional governance.
51. The Respondents deny having acted arbitrarily or in bad faith and maintain that they merely exercised their lawful administrative mandate by implementing Government Circular Ref. No. OP/CAB.9/1.
52. The Respondents further contend that the doctrine of legitimate expectation is inapplicable where the expectation asserted is inconsistent with statute, Government policy, or the public interest.
53. According to the Respondents, the Petition is intended to unlawfully retain employees in service beyond the lawful retirement age, thereby exposing the University to audit queries, administrative sanctions, and potential legal liability.
54. The Respondents further contend that the Petition discloses no constitutional violation and merely raises an ordinary labour dispute.
55. They therefore assert that both the Petition and the accompanying application are speculative, misconceived, and intended to obstruct the lawful implementation of institutional processes.
56. Consequently, the Respondents pray that the Petition dated 15th December 2025 be dismissed with costs.
The Rejoinder
57. In response, the Petitioner filed a supplementary affidavit sworn by Robinson K. Kirui on 2nd March 2026 whereupon it averred that the Respondents’ assertion that the retirement notices had been issued strictly in accordance with Government policy was misleading and incomplete.
58. The Petitioner contended that, under section 59(1)(b) of the Labour Relations Act, a registered Collective Bargaining Agreement binds the employer, the trade union and all unionisable employees covered by it.
59. Citing Clause 32.0 of the 2012/2013 Collective Bargaining Agreement between the University of Eldoret and the Kenya Universities Staff Union (KUSU), the Petitioner asserted that it provided that the Agreement would remain valid and binding upon the parties.
60. According to the Petitioner, clause 32.0 was couched in clear and unambiguous terms and did not permit either party to vary the CBA unilaterally. The Petitioner maintained that, by virtue of clause 32.0(a), the CBA did not lapse on 30th June 2013 but expressly continued in force until it was mutually amended or replaced by a subsequently negotiated agreement. It was further averred that clause 32.0(b) prescribed a mandatory review procedure requiring the issuance of written notice and engagement between the parties.
61. The Petitioner contended that the Respondents had not issued any written notice seeking to review or amend the provision relating to retirement age in accordance with clause 32.0(b).
62. The Petitioner further stated that no negotiations had been undertaken and no subsequent agreement varying the retirement age from sixty-five (65) years to sixty (60) years had been registered.
63. The Petitioner therefore contended that the Respondents’ reliance on Government Circular Ref. No. OP/CAB.9/1 dated 16th June 2025 could not override their contractual and statutory obligations under a subsisting CBA. In this regard, the Petitioner averred that the assertion by the Respondents that the CBA had been “overtaken by events” or was “subject to Government policy” was legally untenable. The Petitioner maintained that Government circulars could not unilaterally vary the terms of a negotiated and registered CBA without compliance with the applicable statutory dispute-resolution framework.
64. In this regard, the Petitioner maintained that it is a cardinal principle of labour law that an employer could not unilaterally alter terms and conditions of employment negotiated through collective bargaining.
65. The Petitioner further contended that Government policy could not supersede rights protected under Article 41 of the Constitution, which guarantees the right to fair labour practices.
66. On legitimate expectation, the Petitioner averred that such an expectation arose where a public authority, through a representation or established practice, created an expectation that it would act in a particular manner.
67. The Petitioner asserted that the Respondents could not rely on public policy to defeat the affected employees’ legitimate expectation where no lawful process had been undertaken to vary the applicable retirement terms.
68. It was further contended that the mandatory retirement age of sixty (60) years in the Public Service was not absolute, as several public institutions lawfully operated under different retirement frameworks arising from negotiated agreements.
69. The Petitioner averred that the Respondents had not demonstrated that the CBA had been nullified, declared unlawful or set aside by any competent court or statutory body.
70. In response to the averment by the Respondents that the Petition raises a purely labour dispute and not disclose a constitutional violation, the Petitioner maintained that the impugned retirement notices implicated, among others, the right to fair labour practices under Article 41, the right to fair administrative action under Article 47 and the right to a fair hearing under Article 50 of the Constitution.
71. The Petitioner further averred that the affected employees had not been accorded meaningful consultation before the unilateral alteration of their retirement age, contrary to the requirements of fair administrative action under the Fair Administrative Action Act, 2015.
72. According to the Petitioner, the approvals allegedly granted by the University Management Board and Council did not cure the illegality arising from the unilateral departure from the terms of the CBA.
73. In response to the averment made by the Respondents that enforcement of the CBA would expose them to audit queries, the Petitioner averred that the argument was speculative and could not justify the violation of binding contractual and constitutional rights.
74. In the end, the Petitioner maintained that the retirement notices issued to the affected employees were unlawful and unconstitutional and had been issued in breach of the CBA.
75. As directed by the court on 18th February 2026, the Petition was disposed of by way written submissions. I have perused the record and did not find submissions for the Petitioner.
The Respondents’ submissions
76. In their submissions dated 2nd July 2026, the Respondents identified the following issues for determination: -
i. Whether the retirement notices issued by the Respondents were unlawful or unconstitutional
ii. Whether the 2012/2013 Collective Bargaining Agreement overrode Government policy on retirement age
iii. Whether the doctrine of legitimate expectation applied in the circumstances of the case
iv. Whether the Petition disclosed any violation of constitutional rights
v. Whether the Petitioner was entitled to the reliefs sought.
77. On the first issue, regarding whether the retirement notices issued to the affected employees were unlawful or unconstitutional, the Respondents submitted that the notices were lawful, procedurally proper and issued in strict compliance with Government policy.
78. The Respondents maintained that the 1st Respondent was a public university established under the Universities Act and was, therefore, bound by Government circulars and policies governing the Public Service. The Respondent submitted that the Government Circular Ref. No. OP/CAB.9/1 dated 16th June 2025 reiterated that the mandatory retirement age in the Public Service was prescribed under regulation 70(1) of the Public Service Commission Regulations, 2020 which provides subject to the Constitution, section 80 of the Public Service Commission Act, any relevant written law and any specific Government policy, the mandatory retirement age in the Public Service shall be:
a. sixty (60) years
b. sixty-five (65) years for persons with disabilities
c. such age as may be prescribed by the relevant legislation and guidelines for lecturers and research scientists serving in public universities, research institutions or equivalent institutions.
79. On this basis, the Respondents urged the Court to find that the mandatory retirement age in the Public Service was sixty (60) years unless otherwise lawfully extended. They maintained that they had acted within the law by implementing a binding Government directive and could not, therefore, be faulted for issuing the impugned retirement notices.
80. On the second issue, regarding whether the 2012/2013 CBA overrode Government policy on retirement age, the Respondents maintained that the applicable Government policy prescribed a mandatory retirement age of sixty (60) years. They contended that any provision of the CBA purporting to prescribe a different retirement age could not override the applicable statutory framework and binding Government policy.
81. On the third issue as to whether the doctrine of legitimate expectation applied in the circumstances of the case the Respondents relied on Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others, Petitions Nos. 14, 14A, 14B and 14C of 2014 (Consolidated), and Republic v Nairobi City County & another ex parte Wainaina Kigathi Mungai [2014] eKLR, for the proposition that legitimate expectation could not override the law. The Respondents also relied on Republic v Kenya Revenue Authority ex parte Aberdare Freight Services Limited [2004] 2 KLR 530.
82. The Respondents therefore submitted that although the affected employees had a legitimate expectation to retire upon attaining the age of sixty-five (65) years, the doctrine of legitimate expectation could not apply where the alleged expectation was contrary to the law or public policy. They maintained that the applicable policy prescribed a retirement age of sixty (60) years and that any expectation of retirement beyond that age was unlawful and unenforceable.
83. They therefore urged the Court to find that the Petitioner’s relia
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1. The Petitioner is a trade union duly registered under the Labour Relations Act, 2007
2. The 1st Respondent is a Public University established under the Universities Act, No. 42 of 2012 responsible for all employment, human resource, administrative, and governance decisions affecting its teaching and non-teaching staff.
3. The 2nd Respondent, is the governing body of the 1st Respondent, established under the Charter issued pursuant to Section 20 of the Universities Act, 2012. It is described in the petition as the apex organ charged with the University's governance, policy direction and human resource management, including setting terms and conditions of service and overseeing recruitment, promotions and disciplinary processes.
4. The 3rd Respondent is the administrative and academic head of the 1st Respondent, appointed under the Universities Act and is responsible for the day-to-day management of the University.
5. The Petitioner filed the Petition dated 26th January 2026 against the Respondents invoking various Articles of the Constitution, sections of Fair Administrative Action Act and Employment and Labour Relations Court Act. It seeks the following reliefs:
a. A declaration be issued that the Respondents have violated the provisions of Articles 2, 3(1), 41, 47, and 232 of the Constitution of Kenya 2010, by attempting to unilaterally enforce a retirement age of sixty (60) years contrary to the registered CBA and the University’s Terms of Service.
b. A declaration be issued that any directive, notice, or policy issued by the Respondents purporting to reduce the retirement age of the Petitioner's members
from sixty-five (65) years to sixty (60) years is null and void, having no legal effect.
c. A declaration be issued that the Respondents are bound by the provisions of the registered Collective Bargaining Agreement (CBA) 2012/2013 and the University's
Terms of Service, including the provision on the mandatory retirement age of sixty-five (65) years and cannot unilaterally amend or override these terms.
d. An order of mandamus be issued compelling the Respondents to recognize and maintain the retirement age of sixty-five (65) years for all unionized employees as
stipulated under the registered CBA and University Terms of Service.
e. An order be issued directing the Respondents to withdraw, rescind and set aside any retirement notices, circulars, or administrative actions issued in contravention of the CBA 2012/2013 and the University's Terms of Service regarding retirement age.
f. A permanent injunction be issued restraining the Respondents, their officers, agents, servants, employees, or any persons acting under their direction or
authority, from enforcing, implementing, or giving effect to any retirement notices, orders, or directives including but not limited to Government Circular Ref. No.
OP/CAB.9/1 dated 16th June 2025-that seek to compulsorily retire any unionized employee of the 1st Respondent before attaining the age of sixty-five (65) years.
g. A permanent injunction be issued restraining the Respondents, their officers, agents, servants, employees, or any persons acting under their direction or
authority, from taking any action that effects the retirement of unionized employees of the 1st Respondent in contravention of the registered Collective Bargaining
Agreement (CBA) 2012/2013 and the University’s Terms of Service, which expressly provide for a retirement age of sixty-five (65) years.
h. An order be issued directing the 1st Respondent to withdraw, rescind, and set aside any notices or administrative actions issued in contravention of the CBA and University Terms of Service concerning retirement age, ensuring that all affected employees’ rights to retire at sixty-five (65) years are fully restored.
i. The costs of this Petition be awarded to the Petitioner.
6. The Petition is supported by the affidavit of Robinson K. Korir, the Branch Secretary of the Petitioner herein sworn on 15th December 2025.
7. The Respondents opposed the Petition vide the Replying Affidavit sworn on 6th February 2026 by Professor Kimutai Kimeli, the Registrar in charge of Administration.
The Petitioner’s case
8. The Petitioner avers that it is the duly recognized trade union representing the unionisable employees of the 1st Respondent. It contends that it engaged in collective bargaining negotiations with the 2nd Respondent culminating in the execution of a local Collective Bargaining Agreement.
9. The Petitioner states that the 2012/2013 CBA was duly executed on 22nd November 2013 and subsequently registered in accordance with the provisions of the Labour Relations Act. According to the Petitioner, by virtue of such registration, the CBA acquired binding legal force and became an integral part of the terms and conditions of service governing all unionisable employees of the 1st Respondent.
10. The Petitioner further avers that the 2012/2013 CBA contains, inter alia, Clause 22.1, which expressly provides that the compulsory retirement age for all unionisable employees of the 1st Respondent shall be sixty-five (65) years.
11. According to the Petitioner, Clause 22.1 is couched in clear, mandatory, and unequivocal terms, leaving no room for administrative discretion, interpretive uncertainty, or unilateral variation by either party to the Collective Bargaining Agreement. It provides: -
22.1 Retirement
(a) The compulsory retirement age shall be sixty-five (65) years
12. The Petitioner avers that the deliberate use of the mandatory term “shall” in Clause 22.1 unequivocally reflects the intention of the parties to prescribe the retirement age as a mandatory, binding, and non-derogable term of the Collective Bargaining Agreement. According to the Petitioner, the provision was consciously negotiated at arm's length and incorporated as a fundamental and inseparable term of the unionisable employees' conditions of service.
13. The Petitioner further avers that, in addition to the provisions of the 2012/2013 CBA, the 1st Respondent’s Terms of Service for Academic, Senior Library and Administrative Staff similarly affirm and reinforce the applicable retirement regime. In particular, Clause 27(b) provides as follows:
27(b) The compulsory retirement age for teaching staff shall be seventy (70) years and for non-teaching staff sixty-five (65) years.
14. The Petitioner contends that the Terms of Service are wholly consistent with the 2012/2013 CBA, thereby establishing a uniform institutional retirement framework under which unionisable non-teaching employees represented by the Petitioner are required to retire upon attaining the age of sixty-five (65) years.
15. The Petitioner further avers that the 1st Respondent has, over the years, consistently implemented the retirement age of sixty-five (65) years without dispute or deviation. According to the Petitioner, this longstanding practice is demonstrated by the payslips issued to unionisable employees, which, as at November 2025, reflected retirement countdowns based on a retirement age of sixty-five (65) years, thereby evidencing the 1st Respondent's continued recognition and implementation of the retirement provisions contained in the 2012/2013 CBA.
16. The Petitioner further asserts that numerous unionisable employees have retired upon attaining the age of sixty-five (65) years in accordance with the applicable contractual and statutory framework and that the retirement age of sixty-five (65) years has, crystallized not only as an express contractual term but also as a longstanding and consistent labour practice embedded in the administrative operations of the 1st Respondent.
17. The Petitioner therefore maintains that, in the absence of any lawful variation, amendment, or replacement of the 2012/2013 CBA in accordance with the procedures prescribed under the Labour Relations Act, the compulsory retirement age applicable to unionisable employees remains sixty-five (65) years.
18. The Petitioner avers that, notwithstanding the binding provisions of the 2012/2013 CBA, the 2nd Respondent, acting on behalf of the 1st Respondent, issued an internal memorandum dated 23rd June 2025 (Ref. UOE/A/VC/VC/001), notifying employees of the 1st Respondent of its intention to enforce a mandatory retirement age of sixty (60) years for public officers, including the Petitioner's unionisable members.
19. The Petitioner further avers that the impugned memorandum was founded upon Government Circular Ref. No. OP/CAB.9/1 dated 16th June 2025, which was subsequently noted and adopted by the 2nd Respondent during its 116th Special Meeting held on 23rd June 2025.
20. According to the Petitioner, the effect of the said Government Circular is to impose a mandatory retirement age of sixty (60) years upon public officers, including the unionisable employees represented by the Petitioner, thereby directly conflicting with the retirement provisions contained in the binding 2012/2013 CBA and the 1st Respondent’s Terms of Service.
21. The Petitioner avers that aggrieved by what it considered to be a unilateral and unlawful attempt to alter the agreed retirement age, through its Branch Secretary, Mr. Robinson Korir, it addressed a letter dated 30th June 2025 to the 3rd Respondent objecting to the proposed implementation of the memorandum.
22. The Petitioner contends that in the said letter, it challenged the legality, propriety and enforceability of the proposed reduction of the retirement age, contending that the Respondents could not lawfully rely on the Government Circular to vary or override the retirement provisions contained in the binding 2012/2013 Collective Bargaining Agreement.
23. The Petitioner avers that it reiterated that the retirement age constitutes a fundamental term and condition of service, painstakingly negotiated between the parties and protected under both the Labour Relations Act and Article 41 of the Constitution. The Petitioner maintained that any attempt to unilaterally reduce the retirement age to sixty (60) years would amount to an unlawful, unfair, and unconstitutional variation of the terms of employment.
24. The Petitioner avers that, notwithstanding its unequivocal objection and despite the continued validity and binding force of the 2012/2013 CBA as at 2nd December 2025, the Respondents proceeded to issue retirement notices based on the impugned Government Circular.
25. According to the Petitioner, the retirement notices sought to enforce a compulsory retirement age of sixty (60) years, thereby acting in direct contravention of the 2012/2013 CBA, the 1st Respondent's Terms of Service and the statutory protection accorded to registered collective bargaining agreements under the Labour Relations Act.
26. The Petitioner further avers that, on 2nd December 2025, the Respondents issued retirement notices to, among others, the following unionisable employees, requiring them to retire upon attaining the age of sixty (60) years notwithstanding their alleged contractual, collective, and statutory entitlement to retire at sixty-five (65) years:
a) Rebecca S. Makori (aged 60 years) – Secretary
b) Margaret N. Oduor (aged 61 years) – Nursing Officer
c) Linet N. Alfayo (aged 62 years) – Secretary
d) Henry Z Ongwae (aged 60 years) - Medical Laboratory Technologist
e) Kimosop Chepkwony (aged 62 years) - Public Health Officer
f) Costa Jeptoo (aged 60 years) - Secretary
g) David Thuo (aged 61 years) - Head Butcher Man
h) William Kemboi (aged 60 years) - Senior Accountant
i) Barnabas 0. Agar (aged 62 years) - Senior Accountant
j) Winnie Kottut (aged 63 years) - Senior Student Counsellor
k) John Ngetich (aged 63 years) – Accountant
27. The Petitioner asserts that upon learning of the issuance of the retirement notices on 3rd December 2025, its Branch Secretary promptly addressed a further demand letter dated 3rd December 2025 to the 2nd Respondent, formally protesting the impugned action and demanding the immediate withdrawal of the retirement notices in compliance with the applicable Collective Bargaining Agreement and the 1st Respondent’s Terms of Service.
28. The Petitioner contends that, despite receipt of the said demand and objection, the 2nd and 3rd Respondents failed to withdraw the impugned retirement notices and instead persisted in their intended course of action, thereby precipitating the institution of the present Petition to forestall the alleged violation of the Petitioner's members' constitutional and contractual rights.
29. The Petitioner further avers that the Respondents sought to justify the impugned retirement notices by relying on the National Collective Bargaining Agreement for the 2021–2025 cycle executed on 23rd November 2024 between the Inter-Public Universities Councils Consultative Forum (IPUCCF) of the Federation of Kenya Employers (FKE) and the Kenya Universities Staff Union (KUSU).
30. According to the Petitioner, Clause 4 of the said National CBA provides that the retirement age of members of the Kenya Universities Staff Union (KUSU) shall be:
i. Sixty-five (65) years for members of KUSU working in teaching laboratories, teaching workshops, and libraries
ii. Sixty-five (65) years for members of KUSU who are persons living with disabilities
iii. Sixty (60) years for all other members of KUSU
iv. The revised retirement age shall take effect from the date of execution of the Agreement.
31. The Petitioner avers that the Respondents relied on the foregoing provisions of the National CBA together with Government Circular Ref. No. OP/CAB.9/1 to justify the impugned retirement notices and to impose a blanket retirement age of sixty (60) years upon unionisable employees, in disregard of the subsisting 2012/2013 CBA. The Petitioner contends that such action was unilateral, arbitrary, unlawful, and contrary to the negotiated terms and conditions of service.
32. The Petitioner further contends that, even assuming, without conceding, that the 2021–2025 National CBA and Government Circular Ref. No. OP/CAB.9/1 were lawfully applicable to the determination of the retirement age, the 2012/2013 CBA remains the more favourable instrument within the meaning of section 26 of the Employment Act and therefore prevails by operation of law.
33. The Petitioner maintains that the 2012/2013 CBA remains valid, binding, and fully operative, having neither been revoked, amended, nor lawfully displaced. It therefore contends that the impugned retirement notices, having been issued in derogation of the said CBA, are unlawful, null and void, and constitute a violation of the right to fair labour practices guaranteed under Article 41 of the Constitution.
34. The Petitioner further avers that the Respondents' unilateral departure from the negotiated retirement framework, undertaken without consultation or agreement, has occasioned substantial prejudice to its members by disrupting established employment relations, undermining institutional certainty, and exposing employees to significant professional, financial, and personal anxiety.
35. The Petitioner further contends that the Respondents' actions have exposed its members to considerable financial prejudice. It avers that, for decades, employees structured their personal, financial, and professional affairs on the legitimate understanding that the applicable retirement age was sixty-five (65) years, and consequently entered into long-term financial commitments, including mortgages, personal loans, and development financing, in reliance upon that retirement framework.
36. The Petitioner therefore asserts that the Respondents' unilateral attempt to reduce the retirement age from sixty-five (65) years to sixty (60) years, contrary to the subsisting Collective Bargaining Agreement, the 1st Respondent's Terms of Service, applicable statutory provisions, and longstanding institutional practice, has exposed its members to severe and unforeseen financial hardship, undermined their economic security, disrupted their livelihoods, and occasioned considerable uncertainty and psychological distress.
37. The Petitioner avers that unless restrained by orders of this Court, the Respondents will continue to enforce the impugned retirement age, thereby causing irreparable harm to its members through the premature loss of employment, disruption of their financial security, and frustration of the legitimate expectations developed over many years of service.
The Respondent’s case
38. In response to the Petition, the Respondents admit having issued retirement notices to certain unionisable employees requiring them to retire upon attaining the age of sixty (60) years. They, however, deny that the notices were issued in contravention of the 2012/2013 Collective Bargaining Agreement or the University's Terms of Service.
39. The Respondents categorically deny that the impugned retirement notices were unlawful, unconstitutional, arbitrary, or in breach of the applicable Collective Bargaining Agreement. They contend that the notices were issued in strict compliance with the applicable law, Government policy, and the University's approved Human Resource instruments.
40. The Respondents aver that the mandatory retirement age in the Public Service and State Corporations, including public universities, is sixty (60) years, unless an extension is expressly granted in accordance with Government policy and approved by the relevant authorities.
41. The Respondents further state that the University of Eldoret is a public university established under the Universities Act and is therefore bound by Government circulars, directives, and policies. They contend that the impugned retirement notices were issued pursuant to Government Circular Ref. No. OP/CAB.9/1 dated 16th June 2025.
42. According to the Respondents, all members of staff were notified of the Government Circular through an internal memorandum Ref. No. UoE/A/VC/VC/001 dated 23rd June 2025.
43. The Respondents further contend that the retirement age of sixty-five (65) years relied upon by the Petitioner was neither absolute nor universally applicable and, in any event, could not override binding Government policy applicable to public institutions.
44. The Respondents acknowledge that the 2012/2013 Collective Bargaining Agreement was executed on 22nd November 2013 between the University of Eldoret Council, as employer, and the Kenya Universities Staff Union (KUSU), and that the Agreement was duly registered.
45. They nevertheless aver that the 2012/2013 Collective Bargaining Agreement has either expired, been overtaken by subsequent events, or is subject to prevailing Government policy, and therefore cannot be enforced in a manner inconsistent with the national retirement policy.
46. The Respondents further contend that any provision in the 2012/2013 Collective Bargaining Agreement purporting to prescribe a retirement age of sixty-five (65) years without Government approval would be unlawful, unenforceable, and incapable of binding the Respondents.
47. The Respondents state that, at a Special Meeting of the University Management Board held on 9th October 2025, it was resolved that employees affected by the Government Circular be issued with one year's notice of their impending retirement in accordance with the applicable Terms of Service.
48. The Respondents further aver that the affected employees were duly served with retirement notices in accordance with established human resource procedures and were afforded sufficient notice to prepare for their exit from service.
49. It is further averred that, during its 57th Ordinary Meeting held on 10th November 2025, the University Council considered Council Paper No. HRC133 relating to the implementation of the Government Circular on retirement age and approved the issuance of retirement notices to the affected employees.
50. The Respondents state that the University Council is the supreme governing organ of the University, charged with overall policy formulation, strategic oversight, and institutional governance.
51. The Respondents deny having acted arbitrarily or in bad faith and maintain that they merely exercised their lawful administrative mandate by implementing Government Circular Ref. No. OP/CAB.9/1.
52. The Respondents further contend that the doctrine of legitimate expectation is inapplicable where the expectation asserted is inconsistent with statute, Government policy, or the public interest.
53. According to the Respondents, the Petition is intended to unlawfully retain employees in service beyond the lawful retirement age, thereby exposing the University to audit queries, administrative sanctions, and potential legal liability.
54. The Respondents further contend that the Petition discloses no constitutional violation and merely raises an ordinary labour dispute.
55. They therefore assert that both the Petition and the accompanying application are speculative, misconceived, and intended to obstruct the lawful implementation of institutional processes.
56. Consequently, the Respondents pray that the Petition dated 15th December 2025 be dismissed with costs.
The Rejoinder
57. In response, the Petitioner filed a supplementary affidavit sworn by Robinson K. Kirui on 2nd March 2026 whereupon it averred that the Respondents’ assertion that the retirement notices had been issued strictly in accordance with Government policy was misleading and incomplete.
58. The Petitioner contended that, under section 59(1)(b) of the Labour Relations Act, a registered Collective Bargaining Agreement binds the employer, the trade union and all unionisable employees covered by it.
59. Citing Clause 32.0 of the 2012/2013 Collective Bargaining Agreement between the University of Eldoret and the Kenya Universities Staff Union (KUSU), the Petitioner asserted that it provided that the Agreement would remain valid and binding upon the parties.
60. According to the Petitioner, clause 32.0 was couched in clear and unambiguous terms and did not permit either party to vary the CBA unilaterally. The Petitioner maintained that, by virtue of clause 32.0(a), the CBA did not lapse on 30th June 2013 but expressly continued in force until it was mutually amended or replaced by a subsequently negotiated agreement. It was further averred that clause 32.0(b) prescribed a mandatory review procedure requiring the issuance of written notice and engagement between the parties.
61. The Petitioner contended that the Respondents had not issued any written notice seeking to review or amend the provision relating to retirement age in accordance with clause 32.0(b).
62. The Petitioner further stated that no negotiations had been undertaken and no subsequent agreement varying the retirement age from sixty-five (65) years to sixty (60) years had been registered.
63. The Petitioner therefore contended that the Respondents’ reliance on Government Circular Ref. No. OP/CAB.9/1 dated 16th June 2025 could not override their contractual and statutory obligations under a subsisting CBA. In this regard, the Petitioner averred that the assertion by the Respondents that the CBA had been “overtaken by events” or was “subject to Government policy” was legally untenable. The Petitioner maintained that Government circulars could not unilaterally vary the terms of a negotiated and registered CBA without compliance with the applicable statutory dispute-resolution framework.
64. In this regard, the Petitioner maintained that it is a cardinal principle of labour law that an employer could not unilaterally alter terms and conditions of employment negotiated through collective bargaining.
65. The Petitioner further contended that Government policy could not supersede rights protected under Article 41 of the Constitution, which guarantees the right to fair labour practices.
66. On legitimate expectation, the Petitioner averred that such an expectation arose where a public authority, through a representation or established practice, created an expectation that it would act in a particular manner.
67. The Petitioner asserted that the Respondents could not rely on public policy to defeat the affected employees’ legitimate expectation where no lawful process had been undertaken to vary the applicable retirement terms.
68. It was further contended that the mandatory retirement age of sixty (60) years in the Public Service was not absolute, as several public institutions lawfully operated under different retirement frameworks arising from negotiated agreements.
69. The Petitioner averred that the Respondents had not demonstrated that the CBA had been nullified, declared unlawful or set aside by any competent court or statutory body.
70. In response to the averment by the Respondents that the Petition raises a purely labour dispute and not disclose a constitutional violation, the Petitioner maintained that the impugned retirement notices implicated, among others, the right to fair labour practices under Article 41, the right to fair administrative action under Article 47 and the right to a fair hearing under Article 50 of the Constitution.
71. The Petitioner further averred that the affected employees had not been accorded meaningful consultation before the unilateral alteration of their retirement age, contrary to the requirements of fair administrative action under the Fair Administrative Action Act, 2015.
72. According to the Petitioner, the approvals allegedly granted by the University Management Board and Council did not cure the illegality arising from the unilateral departure from the terms of the CBA.
73. In response to the averment made by the Respondents that enforcement of the CBA would expose them to audit queries, the Petitioner averred that the argument was speculative and could not justify the violation of binding contractual and constitutional rights.
74. In the end, the Petitioner maintained that the retirement notices issued to the affected employees were unlawful and unconstitutional and had been issued in breach of the CBA.
75. As directed by the court on 18th February 2026, the Petition was disposed of by way written submissions. I have perused the record and did not find submissions for the Petitioner.
The Respondents’ submissions
76. In their submissions dated 2nd July 2026, the Respondents identified the following issues for determination: -
i. Whether the retirement notices issued by the Respondents were unlawful or unconstitutional
ii. Whether the 2012/2013 Collective Bargaining Agreement overrode Government policy on retirement age
iii. Whether the doctrine of legitimate expectation applied in the circumstances of the case
iv. Whether the Petition disclosed any violation of constitutional rights
v. Whether the Petitioner was entitled to the reliefs sought.
77. On the first issue, regarding whether the retirement notices issued to the affected employees were unlawful or unconstitutional, the Respondents submitted that the notices were lawful, procedurally proper and issued in strict compliance with Government policy.
78. The Respondents maintained that the 1st Respondent was a public university established under the Universities Act and was, therefore, bound by Government circulars and policies governing the Public Service. The Respondent submitted that the Government Circular Ref. No. OP/CAB.9/1 dated 16th June 2025 reiterated that the mandatory retirement age in the Public Service was prescribed under regulation 70(1) of the Public Service Commission Regulations, 2020 which provides subject to the Constitution, section 80 of the Public Service Commission Act, any relevant written law and any specific Government policy, the mandatory retirement age in the Public Service shall be:
a. sixty (60) years
b. sixty-five (65) years for persons with disabilities
c. such age as may be prescribed by the relevant legislation and guidelines for lecturers and research scientists serving in public universities, research institutions or equivalent institutions.
79. On this basis, the Respondents urged the Court to find that the mandatory retirement age in the Public Service was sixty (60) years unless otherwise lawfully extended. They maintained that they had acted within the law by implementing a binding Government directive and could not, therefore, be faulted for issuing the impugned retirement notices.
80. On the second issue, regarding whether the 2012/2013 CBA overrode Government policy on retirement age, the Respondents maintained that the applicable Government policy prescribed a mandatory retirement age of sixty (60) years. They contended that any provision of the CBA purporting to prescribe a different retirement age could not override the applicable statutory framework and binding Government policy.
81. On the third issue as to whether the doctrine of legitimate expectation applied in the circumstances of the case the Respondents relied on Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others, Petitions Nos. 14, 14A, 14B and 14C of 2014 (Consolidated), and Republic v Nairobi City County & another ex parte Wainaina Kigathi Mungai [2014] eKLR, for the proposition that legitimate expectation could not override the law. The Respondents also relied on Republic v Kenya Revenue Authority ex parte Aberdare Freight Services Limited [2004] 2 KLR 530.
82. The Respondents therefore submitted that although the affected employees had a legitimate expectation to retire upon attaining the age of sixty-five (65) years, the doctrine of legitimate expectation could not apply where the alleged expectation was contrary to the law or public policy. They maintained that the applicable policy prescribed a retirement age of sixty (60) years and that any expectation of retirement beyond that age was unlawful and unenforceable.
83. They therefore urged the Court to find that the Petitioner’s relia
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