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ELRCOtherNot stated in the judgment (application seeking transfer of Winam SRMCC Nos. 412 of 2008, 405 of 2008, 392 of 2010, 388 of 2010 and 386 of 2010)· [2018] KEELRC 1652 (KLR)

Kennedy Okiki & 4 others v Lake Basin Development Authority [2018] KEELRC 1652 (KLR)

Employment and Labour Relations Court of Kenya
5 July 2018
911 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court confirmed it can supervise magistrate courts on employment matters but won't decide their cases for them—and fixed the retrenchment package formula.

What this practically means

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Executive summary

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The claimants, retrenched employees of the Lake Basin Development Authority, applied for five Winam SRMCC files to be transferred and for judgment to be entered in accordance with the decision in Kisumu CMCC No. 122 of 2007, Paul Owino Ramoli v Lake Basin Development Authority, invoking the supervisory jurisdiction under Article 165(6) and (7) of the Constitution. They argued that conflicting magistrate court judgments on the formula for terminal benefits embarrassed the judiciary and hindered fair administration of justice. The respondent filed grounds of opposition contending the court lacked jurisdiction to transfer matters from the lower court. The court held that Article 165(6) and (7) must be construed to include courts of equal status within the definition of the High Court, so the Employment and Labour Relations Court has supervisory jurisdiction over subordinate courts handling employment matters and may call for records and give directions to ensure fair administration of justice. However, it declined to interfere with the decision-making independence of magistrates or to transfer the files and enter judgment. Instead, the court drew the attention of the magistrate courts to the applicable retrenchment guidelines in the letter dated 23rd June 2000, endorsed the High Court decisions of Warsame J in Titus Korir Komen and Chemitei J upholding them, and restated the retrenchment package: golden handshake of Kshs. 40,000, two months' salary in lieu of notice, and severance pay at 2½ months per year worked based on monthly basic salary as at 30th June 1995. All subordinate courts were ordered to be bound by the cited High Court decisions. No costs order was made.

Key legal issues

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01

Whether the Employment and Labour Relations Court may exercise supervisory jurisdiction under Article 165(6) and (7) over subordinate courts handling employment matters

Holding

Yes, the ELRC has supervisory jurisdiction over subordinate courts handling employment and labour matters and may call for the record of proceedings and make orders to ensure fair administration of justice.

Reasoning

The court construed Article 165(6) and (7) as including courts of equal status within the definition of 'the High Court' for supervisory purposes over specialized subordinate courts dealing with employment and land and environment matters. It held the ELRC may call records and make orders or give directions to ensure fair administration of justice, but this power does not extend to dictating how magistrates determine particular cases.

p. 2
02

Whether the court should transfer the files and enter judgment per the Ramoli decision

Holding

The court declined to transfer the files or enter judgment, confining itself to guidance and a restatement of the applicable retrenchment formula.

Reasoning

The court reasoned that invoking supervisory jurisdiction does not license interference with magistrates' decision-making independence. Guidance is properly given through judgments on appeals by aggrieved parties and by addressing matters of concern raised by parties. It therefore only drew the magistrates' attention to the applicable retrenchment guidelines and the binding High Court decisions.

p. 2
03

The correct formula for calculating terminal benefits for retrenched public servants

Holding

The formula is the Dr. Leakey circular as expounded by Dr. Kosgey: golden handshake of Kshs. 40,000, two months' salary in lieu of notice, and severance pay at 2½ months for every year worked based on monthly basic salary as at 30th June, 1995.

Reasoning

Relying on the High Court decisions of Warsame J in Titus Korir Komen v Lake Basin Development Authority and Chemitei J upholding the same, the court found the proper formula and procedure is Dr. Leakey's letter (with Kosgey's letter as a non-contradictory addendum). Subordinate courts are bound by these decisions and cannot deviate unless they distinguish them on sound grounds.

p. 2

Legal principles established

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  • Article 165(6) and (7) of the Constitution should be construed to include courts of equal status, so the Employment and Labour Relations Court has supervisory jurisdiction over subordinate courts handling employment and labour matters.
  • Supervisory jurisdiction does not permit the Employment and Labour Relations Court to interfere with the decision-making independence of magistrates; guidance is given through judgments on appeals and on matters of concern raised by parties.
  • Subordinate courts are bound by decisions of the High Court and are not at liberty to deviate from them unless they can on sound grounds distinguish them.
  • The retrenchment package for public servants comprises a golden handshake of Kshs. 40,000, two months' salary in lieu of notice, and severance pay at 2½ months for every year worked based on monthly basic salary as at 30th June, 1995, pursuant to the Dr. Leakey circular as expounded by Dr. Kosgey.

Court orders

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  1. 1.The court drew the attention of the magistrate courts seized with the retrenchment of public servants to the set instructions and guidelines for implementing staff retrenchment in the civil service, specifically the letter dated 23rd June, 2000
  2. 2.A declaration of the retrenchment package payable to all public servants pursuant to the circulars: (i) Golden handshake of Kshs. 40,000 per retrenchee; (ii) payment of 2 months salary in lieu of notice; (iii) severance pay calculated at 2½ months for every year worked based on monthly basis salary as at 30th June, 1995
  3. 3.An order that all subordinate courts are bound by the cited High Court decisions (Titus Korir Komen and the decision upholding it) in this respect

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 165(6)
  • Constitution of Kenya, 2010Article 165(7)

Cases cited (3)

  • Paul Owino Ramoli v. Lake Basin Development Authority
    Kisumu CMCC No. 122 of 2007
  • Titus Korir Komen v. Lake Basin Development Authority
    Kisumu Civil Suit No. 156 of 2004
  • Unnamed decision by H. K. Chemitei J upholding Titus Korir Komen
    Kisumu Civil Case 113 of 2011
Jurisdiction invoked
Article 165(6) and (7) of the Constitution of Kenya, 2010 (supervisory jurisdiction of the High Court over subordinate courts, construed to include the Employment and Labour Relations Court)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kennedy Okiki & 4 others v Lake Basin Development Authority [2018] KEELRC 1652 (KLR)", Case Analysis (2018). Not stated in the judgment (application seeking transfer of Winam SRMCC Nos. 412 of 2008, 405 of 2008, 392 of 2010, 388 of 2010 and 386 of 2010). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1652/eng@2018-07-05

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.