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ELRCDismissedPetition No 24 of 2018· [2018] KEELRC 1657 (KLR)

Omtatah v Kinyua & another (Petition 24 of 2018) [2018] KEELRC 1657 (KLR)

Employment and Labour Relations Court
29 June 2018
ANABUODHA N.
10,080 words in judgment
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The bottom line

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Kenya's Employment Court upheld the office of Chief of Staff and Head of Public Service and a circular exempting State Corporation CEOs from the mandatory retirement age.

What this practically means

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Executive summary

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The petitioner challenged (1) the constitutionality of the office of Chief of Staff and Head of Public Service held by the 1st respondent and (2) Circular No. OP/CAB.9/1A of 27th February 2018, which stated that terms of service for State Corporations' Chief Executive Officers are contractual and not subject to the mandatory public service retirement age of 60 years or term limits, seeking declarations that both the circular and the designation were inconsistent with the Constitution and void. The respondents raised objections on jurisdiction and locus standi, contending the petition raised no labour dispute and belonged in the High Court, and defended the office as validly created under Article 132(4)(a) upon PSC recommendation. The court first asserted jurisdiction, holding that an employer-employee relationship is not the main criterion for constitutional questions in the employment context; the ELRC Act's preamble covers employment and labour relations and connected purposes, and the office question was so tied to the circular that declining jurisdiction would be unreasonable. On the merits, the court found the office properly constituted: the PSC had recommended its establishment in 2013 and 2016. The designation as Head of Public Service does not usurp the PSC Chairperson's role, since not all public officers fall under the PSC. On the circular, the court found it a lawful policy clarification within the 1st respondent's mandate, noting that CEOs of State Corporations are hired on fixed-term contracts and logically cannot be subject to the mandatory retirement age. The court cautioned that it would not hesitate to declare unconstitutional any use of the circular to extend terms indefinitely, and recommended that renewals be subject to the Article 232 values of public service. The petition was dismissed with no order as to costs.

Key legal issues

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01

Locus standi of the petitioner

Holding

The court did not pronounce against the petitioner's standing; Articles 22 and 258 were invoked but the court disposed of the petition on the merits

Reasoning

The petitioner relied on Articles 22 and 258 of the Constitution which enact public interest litigation and vest every person with standing. The respondents argued the petition fell outside Section 12 of the ELRC Act categories. The court did not make an explicit finding on locus standi, proceeding instead to jurisdiction and merits.

p. 7
02

Jurisdiction of the ELRC over the petition

Holding

The court has jurisdiction; an employer-employee relationship is not the main criterion for constitutional questions in the employment context

Reasoning

Relying on the preamble of the ELRC Act, the court held the jurisdiction over employment and labour relations and connected purposes is wide, not confined to employer-employee disputes. The circular concerned employment contracts for CEOs of State Corporations. The validity of the office of the 1st respondent was so tied to the circular that it would be unreasonable to decline jurisdiction on the office question.

p. 15
03

Whether the office of Chief of Staff and Head of Public Service is properly constituted

Holding

The office is properly constituted under Article 132(4)(a), having been established by the President on the recommendation of the PSC

Reasoning

The PSC's Secretary/CEO swore that in 2013 the PSC received and recommended establishment of the office, and in 2016 established more offices in the Executive Office of the President including the office of Chief of Staff and Head of Public Service. The court found that not all public officers are subject to the PSC, and the designation does not usurp the PSC Chairperson's role.

p. 16
04

Whether the 1st respondent acted within the law in issuing Circular No. OP/CAB/9/1A

Holding

Yes; the circular was a policy clarification issued within the 1st respondent's mandate and is not a statutory instrument

Reasoning

The circular addressed a genuine lack of clarity over CEO tenure that had caused litigation. CEOs of State Corporations are hired on fixed-term contracts, sometimes past retirement age, and are not subject to the mandatory retirement age. The court warned it would not hesitate to declare unconstitutional any use of the circular to extend terms indefinitely.

p. 18

Legal principles established

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  • The ELRC's jurisdiction is not confined to cases where an employer-employee relationship exists; it extends to constitutional questions relating to employment and labour relations including third-party decisions affecting such relationships
  • Once jurisdiction is attracted by a matter arising under the law, the court is clothed with authority to adjudicate the whole matter (accrued jurisdiction)
  • An office may be established in the public service by the President under Article 132(4)(a) upon the recommendation of the Public Service Commission
  • Governance through policy circulars creates flexibility and courts interfere only where the policy contravenes the Constitution, statutes or public morals
  • CEOs of State Corporations on fixed-term contracts cannot be subject to the mandatory public service retirement age

Court orders

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  1. 1.The court declines to grant the prayers sought in the petition
  2. 2.No order as to costs

Authorities

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Legislation

  • Constitution of Kenya 2010Articles 1, 3, 4(2), 10, 22, 23, 48, 50(1), 60 (repealed), 125, 159, 162, 165, 229 (as cited), 232, 233, 234, 249, 258, 259, 260, 132
  • Public Service Commission Act (No. 10 of 2017)Section 80
  • Statutory Instruments Act 2013Section 2, Section 27
  • Employment and Labour Relations Court ActSection 12, Preamble
  • State Corporations Act Cap 446Section 7, Section 5(3), Section 6(2)
  • Companies Act Cap 446Articles of Association
  • Capital Markets Authority Cap 485ARegulations on appointment of board of directors
  • Presidential Circular No. 1 of 2016Terms of reference of Chief of Staff and Head of Public Service
  • Circular No. OP/CAB.9/1A of 27th February 2018Terms of Service for State Corporations Chief Executive Officers
  • Circular No. OP.CAB.2/7A of 20th March 2009Review of Mandatory Retirement Age for Public Servants
  • Access to Information Actnot specified

Cases cited (10)

  • Kiluwa Limited & Another v Commissioner of Lands & 3 Others
    [2015] eKLR
  • Timothy Otuya Afubwa & another v County Government of Trans Nzoia & 3 Others
    [2016] eKLR
  • Re the Matter of the Interim Independent Electoral Commission
    Constitutional Application No 2 of 2011
  • Samuel Kamau Macharia v Kenya Commercial Bank & Others
    (2012) eKLR
  • Wilbert Kipsang Choge & 6 Others v Communications Authority of Kenya & Another
    ELRC Petition No 14 of 2011
  • Kenya Council of Employment and Migration Agencies & Another v Samuel Mwongera Arachi & 2 Others
    [2015] eKLR
  • Geofrey Oriaro v Cabinet Secretary Ministry of Labour Social Security and Services & 4 Others
    2015 eKLR
  • Dean Petty v Commonwealth Bank of Australia
    (2000) FCA 1072
  • Okiya Omtatah v Head of Public Service & 3 Others
    Petition No. 114 of 2016
  • Raila Odinga v Uhuru Kenyatta
Jurisdiction invoked
Articles 162(2)(a) and 165(5)(b) of the Constitution as read with Section 12 of the Employment and Labour Relations Court Act (No. 14 of 2011)

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, "Omtatah v Kinyua & another (Petition 24 of 2018) [2018] KEELRC 1657 (KLR)", Case Analysis (2018). Petition No 24 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1657/eng@2018-06-29

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