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Court of AppealPartially AllowedCivil Appeal No. 18 of 2007

Kenya Tea Development Agency Limited v Ismael Ombati Ochieng & 9 others [2015] KECA 639 (KLR)

Court of Appeal
12 June 2015
4,110 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This was the appellant's appeal against the judgment of the High Court (Ang'awa, J) delivered on 29th November 2006 in HCCC No. 948 of 2003, in which former employees of the dissolved Kenya Tea Development Authority successfully claimed that their early retirement by the Kenya Tea Development Agency Limited breached their fundamental rights under the repealed Constitution, notably section 107 vesting appointment and removal powers in the Public Service Commission. The respondents, retrenched in a 2001 restructuring exercise with compensation packages, had moved the court by notice of motion alleging the Legal Notice converting KTDA into a limited liability company was ultra vires and that their retrenchment was unconstitutional. The High Court agreed, holding the Minister had usurped Public Service Commission powers. Allowing the appeal, the Court of Appeal, in a single judgment of the court (Karanja, Mwera and Azangalala, JJ.A), held that the respondents were at all times parastatal employees appointed by KTDA under section 5(3) of the State Corporations Act, never public or civil servants in the mainstream central government, so section 107 of the repealed Constitution never applied to them. There was no evidence the Government ever paid their salaries, and their employment continued seamlessly from KTDA to the appellant under Legal Notice No. 44 of 1999. The Minister acted within his powers under section 192(4) of the Agriculture Act. The High Court judgment was set aside, the respondents' application ought to have been dismissed, and the respondents were ordered to bear costs both here and in the High Court.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 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. 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. 3.Whether the High Court erred in determining a constitutional application filed in a civil suit whose main suit remained pending
  4. 4.Whether, if the respondents were not public employees, their compensation at termination needed to be determined

Key legal issues

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01

Status of parastatal employees vis-à-vis section 107 of the repealed Constitution

Holding

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

Reasoning

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.

p. 7
02

Powers of the Minister under section 192(4) of the Agriculture Act

Holding

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

Reasoning

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.

p. 6
03

Mode of adjudicating the fundamental rights claim

Holding

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

Reasoning

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.

p. 6

Legal principles established

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  • 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

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  1. 1.Appeal allowed
  2. 2.High Court judgment and decree of 29th November 2006 set aside
  3. 3.Costs of the appeal and of the High Court to be borne by the respondents

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

majority

Wrote the judgment

majority

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

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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

p. 7

Costs

Costs of the appeal and in the High Court to be borne by the respondents

Quotable passages

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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.
p. 7Status of parastatal employees
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.
p. 7Non-application of section 107 to state corporation staff
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.
p. 6Nature of a first appeal
Thus the High Court ought to have dismissed the respondents' application.
p. 8Correct disposition below
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.
p. 8Final orders and costs

Issues in the judgment

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minor

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

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Practical implications

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Frequently asked questions

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Cite this brief

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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.