Court dismisses Gabriel Lengoiboni retirement case

The High Court in Kisumu has dismissed a case that sought to stop the retirement of the Teachers Service Commission boss.

A lobby group of disabled people had claimed that Gabriel Lengoiboni was disabled and should retire at 65 and not 60.

They had hoped to stop the appointment of his successor.

In the ruling, Lady Justice Esther Maina also directed that all disabled people must be fully registered and should inform their employer before seeking to benefit from rights entitled to the group.

“The petitioners have not persuaded this court that they are entitled to an order to stop the process (hiring of a new TSC chief executive),” said the judge.

The Flamengo Community Based Rehabilitation for Disabled Self Help Group had argued that Mr Lengoiboni had lost one eye and it was therefore unfair and against his rights to retire him at 60 and not 65.

The government had in September 2012 extended the retirement age for disabled people to 65 after a group of public servants with disabilities successfully lobbied for the change as part of affirmative action.

Mr Lengoiboni officially retired on July 1 after serving as the TSC boss for 11 years.

“I am not convinced that the petitioners have a prima facie (legitimate complaint) case with a likelihood of success to enable this court give conservatory orders,” ruled the judge while dismissing the case.

She added: “Mr Lengoiboni was aware of his impending retirement since last year in May and could have raised an objections then.”

MINORITY GROUP

The lobby group from Homa Bay County had sought orders to stop Mr Lengoiboni’s retirement and also wanted the appointment of Ms Nancy Macharia as the new chief executive stopped.

Ms Macharia has already taken office.

Through their lawyer, Kenneth Amondi, the group argued that by accepting Mr Lengoiboni’s retirement before the required age for the disabled at 65, the TSC had infringed on his fundamental rights.

“The effect of retiring Mr Lengoiboni is to deny the petitioner to be represented by a public official from a minority group and who was going to facilitate the running of the commission with his 10 years’ experience,” the group said in the suit papers.

The group had presented a letter in support of their argument from an optician showing that Mr Lengoiboni had lost his eye. They also claimed that Mr Lengoiboni had lost one kidney and was disabled.

In its rebuttal, the TSC, through lawyer Allan Sitima, argued that the question as to whether Mr Lengoiboni was disabled was still in dispute.

According to the commission, for Mr Lengoiboni to be declared disabled and to be accorded the rights eligible for that group, he must get a certificate from the National Council for Persons with Disability.

Mr Sitima also argued that the lack of a Kenya Revenue Authority (KRA) tax exemption certificate — usually given to persons with disabilities — showed that Mr Lengoiboni was not disabled.

“The case does not seem to be in good faith. Why did the petitioners bring it out at the last minute on account of somebody who himself has not alleged discrimination?” asked Justice Maina in her ruling.

“For one to claim to be considered as having rights accorded to persons with disability, one must be fully registered and have duly informed their employer for the considerations to be made.”