Okiya Omtatah Okoiti v County Governments Retirement Scheme & 152 others [2020] KEELRC 726 (KLR)
The bottom line
#Kenya's Employment Court consolidated three pension petitions challenging the County Governments' Retirement Scheme Act but refused to assign them to a larger three-judge bench.
What this practically means
#Executive summary
#Key legal issues
#Consolidation of Petition No. 230 of 2019 with the consolidated Petitions Nos. 213 and 222 of 2019
Consolidation granted; the three petitions raise common questions of law and fact concerning the constitutionality of the County Governments' Retirement Scheme Act, 2019
Rule 23 of the ELRC (Procedure) Rules 2016 permits consolidation where a common question of fact or law arises or simultaneous proceedings are practical. All three petitions challenge the constitutionality of sections of the impugned Act and seek declarations of inconsistency. The Supreme Court's guidance in Law Society of Kenya v Centre for Human Rights & Democracy supports consolidation that advances expeditious determination without injustice. Concerns about numerous parties and possible delay were held manageable through proper administration and co-operation; the number of parties or documents is not determinative.
Whether the petitions raise substantial questions of law warranting certification under Article 165(4)
Certification refused; the substantial-question threshold was not met and a single judge can adequately determine the issues
The Constitution does not define a substantial question of law; the determination is discretionary and case-specific. Applying principles drawn from Hermanus Phillipus Steyn and the Okiya Omtatah v Anne Waiguru decision, the Court found the issues were matters of constitutional interpretation that courts handle daily, not novel. The parties were ready for hearing before a single judge; empanelling, complicated by the COVID-19 pandemic and administrative constraints, would cause significant delay contrary to the urgency under which the petitions were filed.
Legal principles established
#- Consolidation of suits is proper where a common question of fact or law arises and it is practical and appropriate to proceed simultaneously, and is meant to facilitate expeditious and efficient disposal without injustice
- Whether a matter raises a substantial question of law under Article 165(4) is a discretionary, case-by-case determination; the factors cannot be reduced to a closed list
- A single judge may hear and determine questions of constitutional interpretation and the constitutionality of statutes; certification for a three-judge bench should be reserved for truly novel or substantial questions and may be refused where empanelling would cause undue delay
Court orders
#- 1.Consolidation of Petition No. 230 of 2019 with Petition No. 213 of 2019 as consolidated with Petition No. 222 of 2019
- 2.Costs of the First Application (dated 26th February 2020) to be in the cause
- 3.Dismissal of the Second Application (dated 26th May 2020) seeking certification and empanelling, with no orders for costs
- Jurisdiction invoked
- Article 165(3)(d) and 165(4) of the Constitution; Employment and Labour Relations Court (Procedure) Rules 2016, Rule 23
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "Okiya Omtatah Okoiti v County Governments Retirement Scheme & 152 others [2020] KEELRC 726 (KLR)", Case Analysis (2020). Petition No. 213 of 2019 (consolidated with Petition No. 222 of 2019; Petition No. 230 of 2019 consolidated by this ruling). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/726/eng@2020-07-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.