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ELRCDismissedPetition No. 79 of 2015· [2018] KEELRC 1806 (KLR)

Chestit Moses Chemben & 88 others v Kenya Revenue Authority [2018] KEELRC 1806 (KLR)

Employment and Labour Relations Court
30 May 2018
HWHellen S. Wasilwa
2,113 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Employment and Labour Relations Court dismissed 89 former KRA employees' claims because the 2010 Constitution cannot be used to fix wrongs that happened before it existed.

What this practically means

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Executive summary

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The Petitioners, 89 former employees of the Kenya Revenue Authority (KRA), claimed they were seconded from the Civil Service to KRA in 1995 and thereafter absorbed as its original staff, but were subjected to a discriminatory two-tier salary structure under which they were grossly underpaid compared to colleagues in similar job groups. They sought severance pay, pay in lieu of notice, unpaid transport, medical and house allowances, long service bonus, outstanding increments and promotions, unpaid basic salaries, pension arrears, interest, and a declaration that the two-tier structure was discriminatory and unconstitutional. KRA denied the violations, asserting that seconded officers were paid per Civil Service policy, those who elected to join were offered contracts from 1st July 1996, a 2001 harmonisation committee abolished the two-tier scale, and pension contributions were properly remitted. The Court framed three issues: infringement of rights under the current Constitution, discrimination, and remedies. It found that the events complained of occurred in 2005 or earlier, under the repealed Constitution, and that the Constitution of Kenya 2010, promulgated on 27th August 2010, cannot be applied retrospectively. Relying on Duncan Otieno Waga v Attorney General and the precision requirement in Anarita Karimi Njeru v Republic, the Court held the Petition was improperly brought under the wrong law, declined to consider the remaining issues, dismissed the Petition, and directed each party to bear its own costs.

Key legal issues

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01

Whether the Petitioners' rights were infringed under the current Constitution.

Holding

The Court held that the events complained of occurred in 2005 or earlier, under the repealed Constitution, and the Petitioners could not invoke the Constitution of Kenya 2010 retrospectively.

Reasoning

The Court noted the current Constitution came into force on 27.8.2010 upon promulgation, and Article 264 repealed the former Constitution on the effective date. Relying on Duncan Otieno Waga v Attorney General, the Court found that Articles 23(1) and 165 empower courts to adjudicate constitutional violations but do not empower them to apply the Constitution retrospectively. Since the complaints arose from events under the old regime, the Petition was improperly brought under the current Constitution.

p. 3
02

Whether the Petitioners were discriminated against and what remedies should issue.

Holding

The Court declined to determine these issues, finding them superfluous given its finding on the applicability of the current Constitution.

Reasoning

Having found the Petition improperly before the Court as being brought under the wrong law, the Court held it was unable to grant any remedies and found it unnecessary to consider the discrimination claim or remedies. The discrimination allegations concerned a two-tier salary structure and pension computation, but these could not found relief under the current Constitution for acts predating 2010.

p. 4

Legal principles established

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  • The Constitution of Kenya 2010 applies prospectively; violations alleged to have occurred under the repealed Constitution cannot be remedied in a petition brought under the current Constitution.
  • A party seeking redress on a constitutional matter must set out with a reasonable degree of precision the complaint, the provision said to be infringed and the manner of infringement.

Court orders

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  1. 1.The Petitioners' case was found not merited and the Petition was dismissed.
  2. 2.Each party to bear its own costs.

Authorities

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Legislation

  • Constitution of Kenya 2010Articles 3, 10, 19, 20, 21, 22, 23, 27, 28, 35, 41, 43, 47, 48, 57, 159, 162, 165, 259, 263, 264
  • Repealed Constitution of KenyaSection 82

Cases cited (2)

  • Duncan Otieno Waga vs Attorney General
    Petition No. 94 of 2011
  • Anarita Karimi Njeru vs Republic (No. 1)
    (1979) KLR 154
Jurisdiction invoked
Article 165 of the Constitution of Kenya 2010 (petition for enforcement of fundamental rights and freedoms before 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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Cite this brief

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Cite this brief

Caselaw, "Chestit Moses Chemben & 88 others v Kenya Revenue Authority [2018] KEELRC 1806 (KLR)", Case Analysis (2018). Petition No. 79 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1806/eng@2018-05-30

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