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ELRCDismissedPetition No. 84 of 2017 (Petition filed 8th March 2017)· [2019] KEELRC 904 (KLR)

Stanley Kupata Lewa & another v Kenya Ports Authority [2019] KEELRC 904 (KLR)

Employment and Labour Relations Court
19 September 2019
JRJames Rika
1,355 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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Two Petitioners employed by the Kenya Ports Authority in its Marine Engineering Department, serving as On Board Engineers on the tugboats SIMBA 3 and KIBOKO 2 since 2004, petitioned the Employment and Labour Relations Court at Mombasa. They alleged they were closed out of advertised Senior Marine Engineer positions after the Respondent raised qualifications to require Bachelor's Degrees, despite a 2015 Succession Plan recommendation for their promotion by Engineer Joseph Atonga. They sought declarations under Article 41 of the Constitution, an injunction restraining the filling of the posts, and an order that they be promoted using the 2012 criteria effective from 2012. The matter was determined on the record, the parties having agreed to dispense with oral evidence; the Respondent conceded the employment relationship but asserted the Petitioners did not meet the professional requirements under the existing Scheme of Service. The Court held that experience alone did not entitle the Petitioners to the senior positions; the Respondent was within its managerial prerogative in requiring Bachelor's Degrees, and the Petitioners had years of opportunity to obtain such Degrees. The 2015 recommendation did not bind the Respondent, as promotion had to meet the standards under the Scheme of Service Revised in May 2013. Prayer (a) was unsupported by evidence, and Prayer (b) was interim in nature and incapable of being a final order. Both Petitioners had retired by the time of judgment, leaving them without a stake in the positions, and they had not sought damages as an alternative remedy. The Court also agreed the dispute should have been filed as a regular Cause, not a constitutional Petition. The Petition was declined with no order on costs, and the Respondent was allowed to fill all senior positions.

Key legal issues

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01

Whether the Petitioners had an enforceable entitlement or legitimate expectation to promotion to Senior Marine Engineer

Holding

They were not entitled to fill the senior positions on experience alone; the Respondent lawfully exercised its managerial prerogative in requiring Bachelor's Degrees.

Reasoning

The Court accepted the Petitioners had acted in the roles since 2004 and were recommended for promotion under a 2015 Succession Plan by Engineer Atonga. However, experience did not confer entitlement: the Respondent followed its Scheme of Service Revised in May 2013, which the Petitioners did not meet, and had years of opportunity to obtain the required Degrees.

p. 2
02

Whether the 2012 promotion criteria should override the Scheme of Service

Holding

No - the Petitioners failed to elaborate the 2012 criteria or show it should override the Scheme of Service Revised in May 2013.

Reasoning

The Petitioners exhibited the Human Resource Manual 2011, under which a Head of Division could recommend promotion where vacancies existed. No such recommendation under the Manual was seen; the 2015 recommendation arose under the Scheme of Service era, whose criteria the Petitioners did not meet.

p. 2
03

Whether any relief could issue after the Petitioners had retired

Holding

No - retired Petitioners have no stake in the positions, and the Court cannot direct promotion of persons no longer in employment.

Reasoning

By the judgment date both Petitioners had retired or were set to retire. Injunctions barring filling of the posts were pointless since the Petitioners could never fill them, and no alternative remedy such as damages was sought.

p. 3
04

Whether the constitutional Petition was the proper procedural vehicle

Holding

No - the dispute should have been filed as a regular Cause, being a simple workplace promotion claim with no constitutional issues.

Reasoning

The Court agreed with the Respondent's submission that a promotion dispute not disclosing constitutional issues belongs in a regular Cause rather than a constitutional Petition.

p. 3

Legal principles established

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  • An employer is within its managerial prerogative to set qualifications for senior positions, including requiring Bachelor's Degrees.
  • A recommendation for promotion by a Head of Division does not bind the employer; promotion must meet the standards set under the applicable Scheme of Service.
  • Disputes over promotion at the workplace that do not disclose constitutional issues ought to be pursued as regular Causes, not constitutional Petitions.

Court orders

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  1. 1.The Petition is declined with no order on the costs
  2. 2.The Respondent is at liberty to fill all the senior positions in the Marine Engineering Department

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 41
  • Scheme of Service (Marine Engineering), Revised May 2013
  • Human Resource Manual 2011Clause B.8 [c]
Jurisdiction invoked
Constitution of Kenya, 2010 - Article 41 (fair labour practices); Employment and Labour Relations Court jurisdiction over constitutional employment claims

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, "Stanley Kupata Lewa & another v Kenya Ports Authority [2019] KEELRC 904 (KLR)", Case Analysis (2019). Petition No. 84 of 2017 (Petition filed 8th March 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/904/eng@2019-09-19

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