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)
The bottom line
#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
#Executive summary
#Key legal issues
#Constitutionality of the Constitution of Kenya (Amendment) Act No. 10 of 2008
The Amendment was not shown to be unconstitutional; it was validly enacted under section 47 of the repealed Constitution and its consequences were cured by the promulgation of the 2010 Constitution
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.
Whether the resultant termination of the petitioners' employment was unconstitutional
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
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.
Entitlement to salaries, allowances and benefits claimed
Not entitled; transfer to public service was not termination, and paying salaries to retirement age would be unjust enrichment
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.
Legal principles established
#- 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
#- 1.The petition is dismissed
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.