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ELRCPartially AllowedPetition No. 213 of 2019 (consolidated with Petition No. 222 of 2019; Petition No. 230 of 2019 consolidated by this ruling)· [2020] KEELRC 726 (KLR)

Okiya Omtatah Okoiti v County Governments Retirement Scheme & 152 others [2020] KEELRC 726 (KLR)

Employment and Labour Relations Court
3 July 2020
5,701 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~23 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This ruling of the Employment and Labour Relations Court at Nairobi (Maureen Onyango J) dealt with two interlocutory applications arising from three petitions challenging the constitutionality of the County Governments' Retirement Scheme Act, No. 21 of 2019. Petitions Nos. 213 and 222 of 2019 had already been consolidated on 9 December 2019, with Petition No. 213 as the lead file. The First Application, by the Local Authorities Provident Fund, sought consolidation of Petition No. 230 of 2019 (filed by the Laptrust and CPF Boards of Trustees) with the consolidated petitions. The Second Application, by the Laptrust and CPF Boards, sought certification of the three petitions as raising substantial questions of law under Article 165(4) of the Constitution and reference to the Chief Justice to empanel a bench of not less than three judges. The Court allowed consolidation, holding that all three petitions raise common questions of law and fact concerning the impugned Act, that Rule 23 of the ELRC (Procedure) Rules 2016 was satisfied, and that concerns about the number of parties and voluminous documents were not determinative and could be managed. The Court declined certification, holding that whether a matter raises a substantial question of law is a discretionary, case-by-case determination; the issues here were not novel, were matters of constitutional interpretation a single judge can handle, and empanelling - compounded by COVID-19 constraints - would delay urgent petitions. The First Application was allowed with costs in the cause; the Second Application was dismissed with no orders for costs.

Key legal issues

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01

Consolidation of Petition No. 230 of 2019 with the consolidated Petitions Nos. 213 and 222 of 2019

Holding

Consolidation granted; the three petitions raise common questions of law and fact concerning the constitutionality of the County Governments' Retirement Scheme Act, 2019

Reasoning

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.

p. 9
02

Whether the petitions raise substantial questions of law warranting certification under Article 165(4)

Holding

Certification refused; the substantial-question threshold was not met and a single judge can adequately determine the issues

Reasoning

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.

p. 10

Legal principles established

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  • 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

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  1. 1.Consolidation of Petition No. 230 of 2019 with Petition No. 213 of 2019 as consolidated with Petition No. 222 of 2019
  2. 2.Costs of the First Application (dated 26th February 2020) to be in the cause
  3. 3.Dismissal of the Second Application (dated 26th May 2020) seeking certification and empanelling, with no orders for costs

Authorities

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Legislation

  • Constitution of KenyaArticles 2(4), 6(2), 10(2)(a), 25, 27, 36, 40, 41, 43(1)(e), 48, 118(1)(b), 159(2)(b), 159(2)(d), 165(3)(d), 165(4), 174(c)(h), 185(2), 186(1), 187(2), 189, 235(1), 259(1); Fourth Schedule; Sixth Schedule
  • County Governments' Retirement Scheme ActNo. 21 of 2019 (the impugned Act)
  • Employment and Labour Relations Court (Procedure) RulesRule 23
  • Retirement Benefits Act-
  • Local Authorities Provident Fund ActCap 272
  • Local Authorities Pension Trust Rules2007
  • County Government Act-
  • Civil Procedure ActSection 1B
  • Civil Procedure RulesOrder 21 Rule 1

Cases cited (17)

  • Benson G. Mutahi v Raphael Gichovi Munene Kabutu & 4 Others
    [2014] eKLR
  • Stumberg and Another v Potgeiter
    (1970) E.A. 323
  • Law Society of Kenya v The Centre for Human Rights and Democracy
    [2014] eKLR
  • Okiya Omtatah Okoiti and another v President Uhuru Muigia Kenyatta and 7 Others
    [2016] eKLR
  • Hermanus Phillipus Steyn v Giovanni Gnechi Ruscone
    [2013] eKLR
  • Martin Nyaga and Others v Speaker County Assembly of Embu and 4 others and Amicus Curiae
    [2014] eKLR
  • David Ojwang Okebe & 11 Others v South Nyanza Sugar Company Limited & 2 Others
    [2009] eKLR
  • Nyati Security Guards and Services Ltd v Municipal Council of Mombasa
    null
  • Joseph Okoyo v Edwin Dickson Wasuma
    [2014] eKLR
  • Okiyah Omtatah Okoiti & another v Anne Waiguru Cabinet Secretary, Devolution and Planning & 3 others
    [2017] eKLR
  • Harrison Kinyanjui v Attorney General & Another
    [2012] eKLR
  • Royal Media Services Ltd & 2 Others v Attorney General & 6 Others
    [2013] eKLR
  • Muranga County Government v Kenya Tea Development Agency Limited
    [2020] eKLR
  • Council of County Governors v Lake Basin Development Authority & 6 Others
    [2019] eKLR
  • Eric Gitari v Attorney General & another
    Constitutional Petition No. 150 of 2016
  • National Gender and Equality Commission v Cabinet Secretary, Minister of Interior and Coordination of National Government & 2 Others
    Constitutional Petition No. 12 of 2016
  • Wycliffe Ambetsa Oparanya & 2 Others v Director of Public Prosecutions & another
    Constitutional Petition No. 561 of 2015
Jurisdiction invoked
Article 165(3)(d) and 165(4) of the Constitution; Employment and Labour Relations Court (Procedure) Rules 2016, Rule 23

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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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.