Kenya Tea Development Agency Limited v Ismael Ombati Ochieng & 8 others
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
#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#Status of parastatal employees vis-à-vis section 107 of the repealed Constitution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
- 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)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Tea Development Agency Limited v Ismael Ombati Ochieng & 8 others", 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.