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ELRCPartially AllowedPetition dated 18th May 2022 (Employment and Labour Relations Court)· [2025] KEELRC 243 (KLR)

Kosgei & 3 others v Geothermal Development Company; KCB Bank Kenya Limited (Interested Party) (Employment and Labour Relations Petition E077 of 2022) [2025] KEELRC 243 (KLR)

Employment and Labour Relations Court
31 January 2025
11,946 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~48 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that Geothermal Development Company could not legally raise four former employees' mortgage rates from 3% to 13%, because a binding government pay commission circular took priority over internal company rules.

What this practically means

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Executive summary

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Four former managerial employees of the Geothermal Development Company (GDC), on fixed-term contracts from 1 February 2017 to 31 January 2022, petitioned the court after GDC withdrew its support for their staff house mortgage loans, prompting KCB Bank (the interested party) to convert the interest from 3% per annum to market rates of 13%. They also sought gratuity at 31% of basic salary, alleging discrimination. They founded the petition on Articles 27, 41(1) and 47 of the Constitution and the Fair Administrative Action Act, contending that the SRC Circular of 17 December 2014 and GDC's own HR Manual and scheme regulations preserved the 3% rate for the life of the loans absent default. GDC relied on clauses 20.2(a) and (c) of its 2019 Regulations, which gave its Board discretion to withdraw support for ex-staff borrowers, citing budgetary constraints, scheme sustainability for over 900 staff, and the petitioners' alleged appropriation of over 50% of the scheme's resources. GDC also argued the petition was contractual, invoking constitutional avoidance and promissory estoppel. The court held the SRC circular binding and superior to the 2019 guidelines; clauses 20.2(a) and (c) were unlawful; and the decision to implement them violated Article 47(1). The petition met the Anarita Karimi threshold and constitutional avoidance did not apply. The gratuity claim was withdrawn as paid. Judgment was entered for the petitioners with declarations, certiorari quashing the withdrawal decision, a prohibitory order preserving the 3% rate absent default, and costs to the petitioners.

Key legal issues

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01

Whether the SRC circular fixing the mortgage interest rate at 3% p.a. was binding on the respondent

Holding

Yes. The SRC circular was binding on the respondent and was superior to the respondent's 2019 Regulations & Guidelines.

Reasoning

Relying on the Court of Appeal decision in Salaries and Remuneration Commission v NHIF, the court found that employees of state corporations are public officers within Article 260, and SRC advice under Article 230(4) is mandatory and binding. No evidence showed SRC approved the respondent's 2019 changes, so the guidelines could not override the circular.

p. 18
02

Whether clauses 20.2(a) and 20.2(c) of the 2019 scheme rules were lawful

Holding

They were unlawful for being contrary to the enabling SRC circular, which preserves the 3% rate for the life of the loan unless the borrower defaults or leaves on disciplinary grounds.

Reasoning

The SRC circular provided that where a public officer leaves service other than on disciplinary grounds, the loan terms remain unchanged unless there is default. The petitioners had not defaulted. Regulations donating to the Board a discretion to withdraw support derogated from the circular without SRC sanction.

p. 20
03

Whether the respondent's decision violated the petitioners' right to fair administrative action and whether the petition met the Anarita Karimi threshold

Holding

Yes, Article 47(1) was violated and the petition was properly before the court; the doctrine of constitutional avoidance did not apply.

Reasoning

The decision to implement regulations adversely affecting the petitioners was unlawful and therefore not reasonable administrative action. Having found a violation of Article 47, the court held the petitioners had precisely set out the provisions infringed and the manner of infringement as required by Anarita Karimi Njeru.

p. 20
04

Whether the petitioners, being on fixed-term contracts, were eligible for the scheme

Holding

Eligibility was not before the court since the loans had already been disbursed; the respondent's own HR manual clause 5.4.1.3 extended the facility to employees on contract terms.

Reasoning

The court noted the SRC circular's scope covered permanent and pensionable officers, but the respondent's own manual applied the mortgage facility to contract-term employees as well. Since loans had been disbursed and secured by charges, the eligibility question was academic.

p. 17

Legal principles established

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  • SRC circulars on remuneration and benefits of public officers are binding on state corporations and cannot be varied by internal regulations made without SRC approval
  • Internal scheme rules that derogate from an enabling SRC circular are unlawful
  • Implementing such unlawful regulations to the detriment of ex-employees constitutes unfair administrative action under Article 47(1)

Court orders

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  1. 1.A Declaration that the actions and decision of the Respondent of withdrawing support from the Petitioners' mortgage loans with the Interested Party under the Respondent's Staff House Mortgage Scheme violated the Petitioners' rights under Article 47 of the Constitution of Kenya, 2010
  2. 2.A Declaration that the Respondent's action or decision that it will no longer support the Petitioners' mortgage loans with the Interested Party is unfair, unreasonable, unlawful therefore void
  3. 3.An order of certiorari quashing the Respondent's decision that it will no longer support the Petitioners' mortgage loans under the GDC Staff House Mortgage Scheme at an interest rate of 3% per annum
  4. 4.An order prohibiting and restraining the Respondent, its employees, agents or any person acting under its instructions, including the Interested Party, from varying, adjusting, increasing or reviewing the interest rates on the Petitioners' mortgage loans from 3% per annum to 13% per annum or any other prevailing market or commercial rates as long as the petitioners do not default in their loans
  5. 5.Costs of the petition

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 19(2), 21, 22, 23(3), 24, 27, 41(1), 47(1), 230(4), 230(5), 232, 259(11), 260
  • Fair Administrative Action ActSections 2, 3, 4, 7, 9, 11
  • Energy Actestablishment of the respondent as an energy sector entity
  • SRC Circular number SRC/ADM/CIR/1/13 Vol. III (128) dated 17th December 2014 on Car Loan and Mortgage Schemes for State Officers and Other Public OfficersClauses 1, 3, 6, 7
  • Employment Act(referred to as alternative contractual forum)

Cases cited (8)

  • Salaries and Remuneration Commission v National Hospital Insurance Fund, Management Board & 2 others (Civil Appeal 156 of 2016)
    [2024] KECA 419 (KLR) (26 April 2024)
  • Jackson Ngovi, Francis Mutuku, Bernard Musau, Bensley Mathuku, Timothy Maneno, Sharack Mwau & Gideon Mwango v County Assembly of Makueni (Petition 1 of 2021)
    [2021] KEELRC 940 (KLR)
  • Anarita Karimi Njeru v Republic
    [1979] KLR 154
  • Japheth Ododa Origa v Vice Chancellor University of Nairobi & 2 Others
    [2018] eKLR
  • KKB v SCM & 5 others
    [2022] KEHC 289 (KLR)
  • Communication Commission of Kenya & 5 Others v Royal Media Services Ltd & 5 others
  • Benjamin Airo Shiraku v. Fauzia Mohamed HCCC 272 of 2011
  • Combe v. Combe
    [1951] 2 KB 215
Jurisdiction invoked
Articles 22, 23(3) and 47 of the Constitution of Kenya, 2010; Fair Administrative Action Act, 2015

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, "Kosgei & 3 others v Geothermal Development Company; KCB Bank Kenya Limited (Interested Party) (Employment and Labour Relations Petition E077 of 2022) [2025] KEELRC 243 (KLR)", Case Analysis (2025). Petition dated 18th May 2022 (Employment and Labour Relations Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/243/eng@2025-01-31

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