Wilfrida Arnodah Itolondo v Board of Trustees of Kenyatta University Staff Retirement Benefits Scheme [2017] KECA 104 (KLR)
The bottom line
#Kenya's Court of Appeal dismissed a trustee's challenge, holding that where a statute has its own dispute process, constitutional petitions won't supply extra remedies.
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 learned Judge erred in failing to issue positive orders declaring the limitation in Rule VI unconstitutional, unreasonable and therefore null and void
- 2.Whether the learned Judge erred in failing to declare null and void the elections held on 15th August 2013 upon holding that Rule VI violated section 26(2)(d) of the Act
- 3.Whether the learned Judge erred in failing to issue positive orders under Article 23(3) upon holding that the appellant's rights under Articles 47 and 50 of the Constitution were violated
- 4.Whether the learned Judge erred in holding that there would be a conflict of interest if the appellant were elected to the respondent's Board of Trustees
- 5.Whether the learned Judge failed to exemplify independence in the drafting of her judgment, rendering it ineffective
Key legal issues
#Whether a constitutional petition could supply remedies where the governing statute provides an inbuilt dispute resolution mechanism
No. Where a claim is properly amenable to a statutory dispute-resolution regime, citing constitutional provisions does not convert the matter into a purely constitutional one entitling the petitioner to Article 23(3) remedies.
The Court held that the High Court's finding that it was properly seized under Article 165 and that the appellant had locus standi did not imply the petition was purely constitutional. The Article 23(3) remedy closest to the relief sought is a declaration of invalidity of law not justified under Article 24; there is no such jurisdiction to fault a rule executed under the Act. The dispute belonged to the Retirement Benefits Act mechanism of review by the CEO and appeal to the Tribunal.
Whether the appellant was discriminated against by Rule VII of the Nomination Rules
No. Rule VII barred trade union officials and elected council members of the sponsor generally, and did not target the appellant as an individual.
The trial Judge had found that Rule VII did not bar ordinary trade union members but officials, whether elected or co-opted, and that a reasonable supposition for barring council members and union officials was possible conflict of interest. The Court agreed that the rule applied across the board to all intending candidates and did not target the appellant individually, so there was no discrimination under Article 27.
Whether the appellant was denied her statutory right to be heard before being barred
Yes. Rule VI was wide, open to abuse, and the respondent arrogated to itself powers vested in the Authority under the Act without affording the appellant a hearing.
The Court agreed with the trial Judge that Rule VI was framed widely and open to abuse; the power to determine suitability of a trustee lay with the Authority under section 22A of the Act, which entrenches the right to be heard before adverse administrative action. The respondent breached the appellant's statutory right to be heard, but the breach did not yield constitutional remedies because the appropriate regime was the statutory one.
Whether the trial Judge's judgment drafting showed lack of independence
No. The judgment complied with Order 21 rule 4 and the principles on contents of judgments.
Applying Order 21 rule 4, the decision in PIL Kenya Ltd v Oppanga, and Mulla on the contents of judgments, the Court found the learned Judge summarized pleadings, framed issues, determined them on the record and gave reasons. There was no misapprehension of facts, misapplication of law, bias, or unbalanced language.
Legal principles established
#- A party who elects to invoke the constitutional jurisdiction of the High Court does not thereby cloak the petition with constitutional status where the dispute properly belongs to a statutory dispute-resolution regime; the court may still determine the appropriate regime and remedies
- Article 23(3) remedies are not available to invalidate a rule or regulation under a statute through constitutional petition; impeachment of such rules must follow the mechanism provided in the governing Act
- A rule barring trade union officials and council members of a sponsor from vying as trustees, applied generally and not targeting an individual, does not discriminate against that individual
Court orders
#- 1.The appeal is dismissed in its entirety
- 2.Each party to bear their own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- Petition No. 410 of 2013
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction over High Court decisions
Relief refused
#Declaration that Rule VI of the respondent's Nomination Rules is unconstitutional, unreasonable and null and void
No jurisdiction under Article 23(3) to fault a rule or regulation executed under the Act; the remedy lay under the inbuilt dispute resolution mechanism of the Retirement Benefits Act
Declaration that the elections held on 15th August 2013 be null and void
The elections could not be annulled without impeachment of the offending rules through the mechanism provided for under the Act or a civil action
Positive orders under Article 23(3) for violation of Articles 47 and 50
The trial Judge could not be faulted for declining a positive constitutional remedy where the respondent's action arose from arrogation of powers not vested in it under the Act
Costs
Each party to bear their own costs
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.
The upshot of all the above reasoning is that, we find no merit in this appeal. It is dismissed in its entirety.
Due to the nature of the litigation giving rise to this appeal, we find it prudent to order each party to bear their own costs.
There is therefore no jurisdiction under Article 23(3) to fault a rule or regulation or any action executed pursuant to such a rule or regulation under the Act.
It did not in any way, as rightly Put by Mr. Odera, clothe the appellant’s petition with a constitutional veil.
We also find that the appellant was not accorded her statutory right of being heard before the negative action barring her from vying for the position of trustee on the respondent’s Board of trustees was taken against her.
It was applied generally across the board to all intending candidates as correctly contended by the respondent.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wilfrida Arnodah Itolondo v Board of Trustees of Kenyatta University Staff Retirement Benefits Scheme [2017] KECA 104 (KLR)", Case Analysis (2017). Civil Appeal No. 28 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/104/eng@2017-12-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.