Kenya Tea Development Agency Limited v Ismael Ombati Ochieng & 9 others [2015] KECA 639 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that parastatal staff are not public servants, so they cannot rely on constitutional protections for civil servants when retrenched.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the High Court was right to hold that the respondents were government/public servants governed by section 107 of the repealed Constitution, or employees of a State Corporation governed by the legal regime specific to parastatals
- 2.Whether the Minister for Agriculture exceeded his powers under Legal Notice No. 44 of 1999 in declaring the staff of the dissolved KTDA to be staff of a newly incorporated limited liability company
- 3.Whether the High Court erred in determining a constitutional application filed in a civil suit whose main suit remained pending
- 4.Whether, if the respondents were not public employees, their compensation at termination needed to be determined
Key legal issues
#Status of parastatal employees vis-à-vis section 107 of the repealed Constitution
The respondents were employees of a state corporation (KTDA), not public servants; section 107 and the Public Service Commission regime did not apply to their appointment, transfer or retrenchment
The letters of appointment were issued by KTDA under section 5(3) of the State Corporations Act, with salary scales, allowances, probation and leave terms. There was no evidence the respondents were ever paid by the Government or appointed by the Public Service Commission. The definitions in the Interpretation and General Provisions Act and the Service Commissions Act confine public officers to those serving the Government of Kenya. Continuous employment was maintained from KTDA to the appellant under L.N. No. 44 of 1999.
Powers of the Minister under section 192(4) of the Agriculture Act
The Minister acted within his powers in winding up KTDA and directing that its assets, liabilities and staff transfer to a newly incorporated company; he did not usurp Public Service Commission powers
Section 192(4) of the Agriculture Act empowered the Minister to wind up the affairs of an authority and direct transfer of its employees as deemed fit. The trial judge erred in holding that the Minister took upon himself Public Service Commission powers, because the respondents were never public servants in the first place.
Mode of adjudicating the fundamental rights claim
Although the notice of motion was neither a constitutional reference nor a petition under the then-operating 'Chunga' Rules and the main suit remained pending, the court would determine the matter on its substance rather than form
The notice of motion was set out in HCCC No. 946/2003, was not filed as a constitutional reference and was not a constitutional petition under the Chunga Rules; the pleadings were 'a study in convoluted pleadings'. Nevertheless the appellate court preferred substance over form, identifying the outcome as a finding that section 107 had not been applied to the respondents' employment.
Legal principles established
#- Employees of a parastatal or state corporation are not public servants under section 107 of the (repealed) Constitution; only persons in the mainstream central government service or local authority service fall under the Public Service Commission's powers
- On a first appeal the Court of Appeal proceeds by way of retrial and is not bound by the trial judge's findings of fact where these fail to account for particular circumstances or probabilities
- A state corporation may engage and employ its own staff on terms approved by the Minister in consultation with the Committee, distinct from Public Service Commission employment
- Courts should focus on substance rather than the form or procedure of pleadings in constitutional claims
Court orders
#- 1.Appeal allowed
- 2.High Court judgment and decree of 29th November 2006 set aside
- 3.Costs of the appeal and of the High Court to be borne by the respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C. No. 948 of 2003
- Jurisdiction invoked
- First appeal to the Court of Appeal from the High Court (fundamental rights application decided within HCCC No. 948 of 2003)
Relief refused
#Respondents' claim that they were public servants whose retrenchment could only be effected through the Public Service Commission under section 107 of the repealed Constitution
The respondents were never public or civil servants; they remained parastatal staff throughout, appointed by KTDA and transferred with continuous employment to the appellant
Costs
Costs of the appeal and in the High Court to be borne by the respondents
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
At no time did the respondents become public servants and there was no evidence before the learned judge that at some point they were paid salaries by Government of Kenya.
They were never at any time public or civil servants in the main stream central government whereby section 107 of the repealed Constitution could or did apply to them.
An appeal from the High Court is by way of a retrial and the Court of Appeal is not bound to follow the trial judge's findings of fact if it appears either that he failed to take account of particular circumstances or probabilities or if the impression of the demeanour of a witness is inconsistence with the evidence generally.
Thus the High Court ought to have dismissed the respondents' application.
Having found as we have done, we have no other decision to make other than to allow this appeal, set aside the High Court judgment under review and order that the costs here and in the High Court be borne by the respondents.
Issues in the judgment
#The judgment refers to L.N. No. 44 of 1999 elsewhere but in one passage states it was issued as 'L. N. No.44 of 1990', an apparent internal date inconsistency
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Tea Development Agency Limited v Ismael Ombati Ochieng & 9 others [2015] KECA 639 (KLR)", Case Analysis (2015). Civil Appeal No. 18 of 2007. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/639/eng@2015-06-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.