Okello v Chairman NGCDF Kisumu East Constituncy & 2 others (Appeal E044 of 2023) [2024] KEELRC 818 (KLR)
The bottom line
#A Kenyan court confirmed that NG-CDF staff employment disputes belong in employment courts, not internal Fund dispute processes.
What this practically means
#Executive summary
#Key legal issues
#Scope of the alternative dispute resolution requirement in section 56 of the NG-CDF Act
Section 56 does not apply to employment disputes about terms and conditions of service; it targets disputes arising from project implementation/tendering
The Court construed section 56 alongside section 22, which contemplates the Board appointing staff on terms and conditions of service. It held that a dispute over such terms is governed by the contract of employment and the Employment Act, not the administration of the Act. The complaints and disputes envisaged by section 56 concern project implementation or tendering between constituency committees and participants, and only such project contractual disputes may take a civil nature warranting Board referral.
Whether the Supreme Court's declaration against the 2013 NG-CDF Act extends to the 2015 Act relied on by the trial court
The unconstitutionality of the 2013 Act cannot be assigned to the 2015 Act absent a direct challenge and determination
The Appellant argued the trial court had relied on an illegal law. The Court noted the challenged statute in the Supreme Court case was the 2013 Act, not the 2015 Act which the Senior Resident Magistrate relied on. Without a direct constitutional challenge to the 2015 Act and a clear determination thereof, the Court declined to extend the declaration of unconstitutionality to the 2015 Act.
Role of a first appellate court
A first appellate court must re-evaluate the evidence and reach its own conclusions, making due allowance for not having seen or heard the witnesses
The Court adopted the guidance in Kamau v Mungai on the duty of a first appellate court. It bore that interdict in mind in reconsidering whether the trial Magistrate correctly declined jurisdiction on the basis of section 56 of the NG-CDF Act.
Legal principles established
#- Disputes about terms and conditions of service between the Fund and its staff do not arise from the administration of the NG-CDF Act; the Employment Act governs such disputes, so section 56 of the NG-CDF Act does not oust the court's jurisdiction over them
- The complaints and disputes contemplated by section 56 of the NG-CDF Act are those arising from project implementation or tendering, which are the disputes that may take a civil nature
Court orders
#- 1.The Ruling of the Senior Resident Magistrate is vacated and set aside
- 2.The Cause be placed before a Magistrates Court with jurisdiction for further proceedings
- On appeal from
- Senior Resident Magistrate's Court
- Jurisdiction invoked
- First appellate jurisdiction over appeal from Senior Resident Magistrate's Court in an employment cause
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Okello v Chairman NGCDF Kisumu East Constituncy & 2 others (Appeal E044 of 2023) [2024] KEELRC 818 (KLR)", Case Analysis (2024). Kisumu Appeal No. E044 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/818/eng@2024-04-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.