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ELRCDismissedPetition filed 28th April 2014 (Amended Petition 29th September 2009) — number not stated in judgment· [2019] KEELRC 1579 (KLR)

David Gachini Moko & 24 others (Suing on their own behalf and on behalf of all other former Electoral Commission of Kenya (ECK) staff members on payroll as at December, 2008) v Attorney General [2019] KEELRC 1579 (KLR)

High Court of Kenya (Employment and Labour Relations Court jurisdiction exercised by Maureen Onyango J — court stated only as 'JUDGE' at Nairobi)
6 May 2019
4,602 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~18 min to read original · ~4 min brief

The bottom line

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Kenya's High Court dismissed former Electoral Commission staff claims, ruling the 2008 constitutional amendment dissolving their employer was valid and their redeployment was not unfair termination.

What this practically means

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Executive summary

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Former staff of the defunct Electoral Commission of Kenya (ECK) petitioned challenging the Constitution of Kenya (Amendment) Act No. 10 of 2008, which disbanded the ECK following the disputed 2007 general elections and the Kriegler Commission (IREC) process. They sought declarations that the Amendment was unconstitutional, that section 41(14) effected a legislative judgment against them without fair hearing, that their removal and redeployment on allegedly inferior terms violated sections 70, 75, 77 and 82 of the former Constitution, and that they were entitled to unpaid salaries for January–March 2009, unpaid pension balances, leave and retrenchment benefits, and salaries and allowances to the end of their terms of employment, quantified at over Kshs.1.3 billion, plus damages and costs. The Attorney General opposed, arguing the petition was moot after the 2010 Constitution, that Parliament validly exercised its amending powers under section 47 of the repealed Constitution, that proceedings of the National Assembly could not be challenged, and that the petitioners, having been transferred to the public service and paid their dues, were entitled at most to gratuity. The court framed three issues: constitutionality of the Amendment, constitutionality of the resulting termination, and entitlement to reliefs. Applying and agreeing with the three-judge bench decisions in the Samuel/Musili Kivuitu line of cases, the court held the Amendment validly enacted and its irregularities, if any, cured by the 2010 Constitution; the disbandment was a political reaction to the ECK's conduct of the 2007 elections and not justiciable. The petitioners' redeployment to the public service was not a termination, and an award of salaries to retirement would be unjust enrichment since they had received their dues and retirement benefits. The petition was dismissed with each party bearing its own costs.

Key legal issues

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01

Constitutionality of the Constitution of Kenya (Amendment) Act No. 10 of 2008

Holding

The Amendment was not shown to be unconstitutional; it was validly enacted under section 47 of the repealed Constitution and its consequences were cured by the promulgation of the 2010 Constitution

Reasoning

The court agreed with the three-judge bench decision in Priscilla Ndululu Kivuitu that irregularities, if any, in enacting the 2008 Amendment were cured by the 2010 Constitution, which recognised the IIEC. The petitioners did not demonstrate any procedural or substantive fault in the enactment. The disbandment was a political reaction to the ECK's conduct of the 2007 elections, and the proceedings of Parliament were protected from challenge under the National Assembly (Powers and Privileges) Act.

p. 6
02

Whether the resultant termination of the petitioners' employment was unconstitutional

Holding

It was not; the removal was sanctioned by the very Constitution the petitioners impugn, and the staff were redeployed to the public service rather than dismissed

Reasoning

The Constitution itself provided for disbanding the ECK and posting its staff to the civil service. The petitioners failed to prove they were redeployed on inferior terms, and the documents showed they were paid all their dues and received retirement benefits while retained in employment. The case was distinguished from the Commissioners' case where the petitioners were not redeployed.

p. 7
03

Entitlement to salaries, allowances and benefits claimed

Holding

Not entitled; transfer to public service was not termination, and paying salaries to retirement age would be unjust enrichment

Reasoning

The petitioners did not justify their demand for full contractual compensation since they did not lose employment but were transferred to the public service. They received retirement benefits under the ECK Staff Retirement Benefits Scheme while remaining in employment. Paying salaries to the date of retirement would therefore amount to unjust enrichment.

p. 7

Legal principles established

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  • A constitutional amendment validly enacted under the prescribed procedure is constitutionally unassailable, even if its effects are harsh
  • A court cannot resurrect institutions the people, in the exercise of sovereign power, have constitutionally discarded
  • Redeployment to the public service upon disbandment of a constitutional body is not termination of employment, and claims for unpaid salaries to retirement would amount to unjust enrichment
  • A political question is not justiciable

Court orders

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  1. 1.The petition is dismissed
  2. 2.Each party shall bear its own costs
Jurisdiction invoked
Original constitutional petition jurisdiction under section 84 of the former Constitution (invoked by the Petitioners' submissions)

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, "David Gachini Moko & 24 others (Suing on their own behalf and on behalf of all other former Electoral Commission of Kenya (ECK) staff members on payroll as at December, 2008) v Attorney General [2019] KEELRC 1579 (KLR)", Case Analysis (2019). Petition filed 28th April 2014 (Amended Petition 29th September 2009) — number not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1579/eng@2019-05-06

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