The High Court could not compel the Salary and Remuneration Commission to provide governors and their deputies a defined benefit pension scheme.
Headnote: The substance of the petition involved the alleged failure by the Salaries and Remuneration Commission (respondent) to set and make recommendations for the provision of a defined benefit pension scheme for retiring Governors and their Deputies at the County level similar to one enjoyed by State Officers at the National Government level. The court held that the claim that the SRC failed to provide a retirement benefit for the Governors and their Deputies thereby violating article 43 (1) (e) was not tenable in view of the payment of gratuity equivalent to 31% total basic pay for every year served at the end of each term and the additional option that existed of joining a direct contributory benefit scheme for governors and the deputies. The respondent had not violated article 43 (1) (e) of the Constitution. SRC had already set out retirement benefits in form of gratuity payment and approved the policy for the establishment of direct contributory scheme for state officers at the County level who included the Governors.
Council of County Governors v Salaries and Remuneration Commission; Kenya Human Rights Commission & another (Interested Parties) (Petition E272 of 2022) [2024] KEHC 9248 (KLR) (Constitutional and Human Rights) (25 July 2024) (Judgment)
Neutral citation: [2024] KEHC 9248 (KLR)
High Court at Nairobi
LN Mugambi, J
July 25, 2024
Reported by Robai Nasike Sivikhe
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Constitutional Law – fundamental rights and freedom – non-discrimination – claim that the fact that pension benefits were accorded to specific state officers but not offered to Governors and Deputy Governors was discriminatory - whether the failure to provide a defined pension scheme for state officers at the County level (Governors and their Deputies) similar to the one provided for State Officers in the National Government level, (retired Presidents, the retired Deputy President, Former Prime Ministers, Vice Presidents, Speakers of National Assembly and the Senate and former Chief Justices and Deputy Chief Justices) was discriminatory to Governors and their Deputies – Constitution of Kenya, 2010, article 27
Constitutional Law– fundamental rights and freedom – economic and social rights – implementation of economic and social rights – progressive realization – progressive realization of the right to social security – whether the failure to provide a pension scheme for Governors and their Deputies violated Article 43 (1) (e) of the Constitution on the right to social security – whether the Salaries and Remuneration Commission had undertaken measures to ensure that the rights Governors and Deputy Governors to social security, was realized – Constitution of Kenya, 2010, articles 20 (5), 21 (2), 43 (1), 201 (c) and 230 (5) (a)
Constitutional Law – separation of powers – powers of the judiciary viz-a-viz the Salaries Remuneration Commission – power of the court to issue orders compelling the Salaries and Remuneration Commission to set a retirement benefits scheme – whether the court could issue mandamus orders compelling the Salaries and Remuneration Commission to make provisions for pension benefits for retiring County Governors and to provide for pension to the office holders of County Governors – Constitution of Kenya, 2010, articles 10, 20 (1) and 234 (5); Salaries and Remunerations Commission Act, section 12

Brief Facts
The substance of the petition involved the alleged failure by the Salaries and Remuneration Commission (respondent) to set and make recommendations for the provision of a defined benefit pension scheme for retiring Governors and their Deputies at the County level similar to one enjoyed by State Officers at the National Government level. The Council of County Governors (petitioner) averred that despite the requirement under article 41 (3) (e), there was no universal scheme of social security for state officers at the County level similar to the one that the State Officers in the National Government had, a pension with defined benefits upon retirement.
The petitioner deponed that Article 151(3) of the Constitution provides for protection of the retirement benefits for the former Presidents and Deputy Presidents from any variation that may be detrimental to the interests of the beneficiaries during their lifetime. For the President, the benefit had been realized through the Presidential Retirement Benefits Act, 2003. For the Deputy President, the Retirement Benefits (Deputy President and Designated State Officers) Act, 2015 coverred former Prime Ministers, Chief Justices, Deputy Chief justices and Speakers of Parliament. None of them was required to contribute since it was a defined pension scheme fully funded and guaranteed by the State. In contrast, Governors and their Deputies neither had pension nor legislation that provided for payment of pension to them. Instead, they were paid a gratuity at the end of the term. The petitioners contend that the differentiation was discriminatory and bred inequity and unfairness.
The petitioner complained that efforts to have the respondent provide a comparable defined pension scheme for the Governors and Deputy Governors was unsuccessful. Accordingly, the petitioner was aggrieved by actions of the respondent and contends that they were in violation of articles 27(5), 43(1) (e), 47 and 73 of the Constitution.

Issues
  1. Whether the failure to provide a pension scheme for Governors and their Deputies violated Article 43 (1) (e) of the Constitution on the right to social security – whether the Salaries and Remuneration Commission had undertaken measures to ensure that the rights Governors and Deputy Governors to social security, was realized
  2. Whether the failure to provide a defined pension scheme for state officers at the County level (Governors and their Deputies) similar to the one provided for State Officers in the National Government level, (retired Presidents, the retired Deputy President, Former Prime Ministers, Vice Presidents, Speakers of National Assembly and the Senate and former Chief Justices and Deputy Chief Justices) was discriminatory to Governors and their Deputies
  3. Whether the court could issue mandamus orders compelling the Salaries and Remuneration Commission to make provisions for pension benefits for retiring County Governors and to provide for pension to the office holders of County Governors
Held
  1. The mandate to consider all relevant circumstances in order to structure appropriate benefits that conform with the principles set out in the Constitution was vested on the SRC. In so doing, the SRC could make distinctions among various categories as long as those distinctions were not shown to be arbitrary or based on discriminatory grounds specified in the Constitution or any other unjustifiable ground.
  2. To succeed in in proving discrimination, a necessary starting point was for the petitioner to demonstrate the similarity in the two categories of state officers. That could take the form of scope of work, tasks, effort and responsibility. The petitioner did not offer any evidence in that regard. The only comparison the petitioner attempted to make was the five-year election cycle. Even from a basic constitutional view-point, it was obvious that the two sets of state officers serve under two distinct levels of Government, national and county level, and the Fourth Schedule of the Constitution, had delineated different functions that were to be performed by State Officers in each level. In terms of peculiarity of roles, the nature and scope of their constitutional responsibilities was a distinguishing factor. It was also a constitutional requirement for the respondent to consider the principle of fiscal sustainability, a factor that the respondent stated it took into account given the high turn-over of governors every five years.
  3. Although Governors and their Deputies were also State officers, there was differentiation in the categories which SRC was justified to take into account in setting their retirement scheme. SRC’s exercise of discretion in arriving at the benefits applicable to different categories of State officers in which it gave the governors and their deputies the gratuity option with a rider that they could join a direct benefit contributory scheme had not been effectively challenged by the petitioner. The petitioner had not demonstrated that the existing terms available to the governors and their deputies were arrived at arbitrarily. SRC had shown that different factors, peculiarities in the positions and application of constitutional principles such as fiscal sustainability were considered in setting the existing terms of Governors and their Deputies. The claim for discrimination failed.
  4. Article 43 (1) of the Constitution must be read together with Article 20 (5) which stated that in applying any right under Article 43; if the State claimed it did not have resources to implement the right, a Court or tribunal or other authority should be guided by the principles set out in article 20 (5) (a, b & c) which included the requirement that the Court could not interfere with a decision of a State organ concerning the allocation of available resources solely on the basis that it would have reached a different conclusion. Further, Article 21 (2) provided that the State ought to take legislative, policy and other measures, including setting standards, to achieve the progressive realization of rights guaranteed under Article 43. That made the realization of Article 43 a work in progress.
  5. The Constitution bestowed on SRC an all-embracing mandate to consider the implications on the fiscal sustainability of benefits to State Officers under Article 230 (5) (a) which required SRC to ensure that the total public compensation was fiscally sustainable. That should be read alongside Article 201 (c) which underscored one of the key principles in public finance that the burdens and benefits of the use of public resources shall be shared equitably between present and future generations. The respondent illustrated attendant huge financial implication of introducing a defined benefit scheme to governors and deputy governors having regard to the high turn-over every five-year election cycle and stated that it would greatly overburden current and future generations in a Country struggling to meet most basic needs for the benefit of the general public. That even with all those constraints, SRC had provided for payment of gratuity benefit equal 31% of basic salary for every year served in addition to approving a policy for the contributory benefit scheme for state officers at the County level.
  6. The claim that the respondent had failed to provide a retirement benefit for the Governors and their Deputies thereby violating article 43 (1) (e) was not tenable in view of the payment of gratuity equivalent to 31% total basic pay for every year served at the end of each term and the additional option that existed of joining a direct contributory benefit scheme for governors and the deputies. The respondent had not violated article 43 (1) (e) of the Constitution.
  7. SRC had already set out retirement benefits in form of gratuity payment and approved the policy for the establishment of direct contributory scheme for state officers at the County level who included the Governors.
  8. Judicial precedents firmly fortified the significant and exclusive role of SRC in structuring the benefits of different state and public officers with a binding determination. That responsibility was exclusively vested on SRC, subject to ensuring that it abides by the principles set out in Article 234 (5) of the Constitution and Section 12 of the SRC Act. In addition, SRC was certainly bound by Article 20 (1) on the Bill of Rights and Article 10 among other constitutional principles. That meant that as long as SRC operated within the defined Constitutional and the statutory boundaries, it had a discretion to exercise in structuring the benefits within those boundaries. The Court could only intervene if it was demonstrated that there had been abuse of discretion in exercise of that mandate by SRC. Courts would therefore not accept the invitation to interfere and substitute their own opinions for/of another constitutional organ or body unless it was demonstrably irrational. Courts, like all other organs were subject to the Constitution and worked within the limits defined by the Constitution.
  9. The High Court could not accept an invitation to compel the respondent to provide governors and their deputies specifically with a defined benefit scheme that the petitioner was pushing for. That would be usurping the respondent’s constitutional and statutory mandate. The instant Court’s intervention could only be called upon if there was illegality or omission to undertake a constitutional mandate by the respondent of which the petitioner had failed to demonstrate in the instant petition.
Petition dismissed with no orders as to costs.


Kenya Law
Case Updates Issue 007/24-25
Case Summaries
CIVIL PRACTICE AND PROCEDURE Principles for one to be joined to a suit as an interested party

Headnote: The application sought leave for admission of the applicant as an interested party. The court highlighted the principles for one to be joined to a suit as an interested party.

Sehmi & another v Tarabana Company Limited & 5 others; Law Society of Kenya (Proposed Interested Party) (Petition (Application) E033 of 2023) [2024] KESC 13 (KLR) (12 April 2024) (Ruling)
Neutral citation: [2024] KESC 13 (KLR)

Supreme Court of Kenya
MK Koome, CJ & P, PM Mwilu, DCJ & V-P, SC Wanjala, I Lenaola & W Ouko, SCJJ

Reported by Kakai Toili


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Civil Practice and Procedure – parties to a suit – interested parties - what were the principles for one to be joined to a suit as an interested party.

Brief Facts
The application sought leave for admission of the applicant as an interested party, and thereafter, an opportunity to file a response and submissions to the petition, and no order as to costs. The applicant stated that its prayers were in line with its statutory mandate, being a representative of advocates tasked with overseeing due diligence in the transfer of property; the applicant intended to assist the court in clarifying the uncertainty in case law, regarding inter-alia applicability of the mirror principle, curtain principle, indemnity principle, the principle of indefeasibility of title under the Land Registration Act 2012, and its predecessor, the Registered Land Act, and the common law principle of nemo dat quod non habet.

Issue:

  1. What were the principles for one to be joined to a suit as an interested party? Read More..

Held:

  1. One must move the court by way of a formal application. Enjoinment was not as of right, but was at the discretion of the court; hence, sufficient grounds must be laid before the court, on the basis of the following elements:
    1. The personal interest or stake that the party had in the matter must be set out in the application. The interest must be clearly identifiable and must be proximate enough, to stand apart from anything that was merely peripheral.
    2. The prejudice to be suffered by the intended interested party in case of non-joinder, must also be demonstrated to the satisfaction of the court. It must also be clearly outlined and not something remote.
    3. A party must, in its application, set out the case and/or submissions it intended to make before the court and demonstrate the relevance of those submissions. It should also demonstrate that the submissions were not merely a replication of what the other parties would be making before the court.
  2. The issues highlighted by the applicant had been largely addressed by the parties to the appeal. Specifically, the applicant had neither identified any personal interest or stake that was clearly identifiable and proximate, nor the prejudice it was likely to suffer in case of non-joinder. Furthermore, the applicant had not demonstrated the relevance of its submissions to the issues of general public importance identified by the Court of Appeal. In any event, the applicant’s submissions went beyond the delineated questions. There was no basis upon which the applicant could be admitted as an interested party.

Application dismissed; each party to bear its own costs.

CONSTITUTIONAL LAW

Committees of Parliament are simply a means to assist Parliament discharge its mandate, Parliament can perform its mandate directly if it so desires

Headnote: The petition challenged amendments to the Standing Orders to allow cabinet secretaries and chief administrative secretaries appear in Parliament for purposes of explaining Government Policy and answer questions on the floor of the House. The court noted that the Constitution did not make it mandatory for Parliament to establish committees. The court further held that accountability was given to Parliament and that committees of Parliament were simply means to assist Parliament to discharge that mandate. Parliament could perform those tasks directly if it so desired and that would not be unconstitutional.

Madzayo & 22 others v Attorney General & 2 others (Petition E120 of 2023) [2023] KEHC 24980 (KLR) (Constitutional and Human Rights) (9 November 2023) (Judgment)
Neutral citation: [2023] KEHC 24980 (KLR)
Court of Appeal at Nairobi
LN Mugambi, J
Reported by Kakai Toili
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Constitutional Law – – Parliament – committees of Parliament - whether it was mandatory for Parliament to establish committees for it to hold the Executive through its cabinet secretaries to account – Constitution of Kenya, 2010, articles 125 and 153(3).
Constitutional Law – doctrines of exhaustion and separation of powers - what was the nature of the doctrines of exhaustion and separation of powers. ;
Statutes interpretation of statutes – interpretation of Standing Orders - whether a standing order that provided for the process amending standing orders was a dispute settlement mechanism.

Brief facts:
The gist of the petition were the amendments to the impugned standing orders 44, 51, 51A, 51B, 51C, 51D, 56 and 248 which the petitioners alleged were in contravention of article 153(3) of the Constitution and section 13 of the Statutory Instruments Act which obligated Parliament to enact statutory instruments guided by the principles of good governance and the rule of law. The genesis of the amendments was a memorandum by the President to the Speakers of Parliament to formulate a mechanism within their Standing Orders to allow cabinet secretaries and chief administrative secretaries appear in Parliament for purposes of explaining Government Policy and answer questions on the floor of the House.
The petitioners detailed the nature and the consequence of amendment and deposed that it was an affront to article 153(3) of the Constitution which already had a mechanism through which cabinet secretaries were held accountable on behalf of the Executive. That provision required attendance of cabinet secretaries to parliamentary committees to answer to any matter to which they were responsible. The petitioners further deponed that the impugned amendments amounted to amending article 153(3) of the Constitution through the backdoor. The petitioners thus prayed that the court declares the impugned amendments to the Senate Standing Orders unconstitutional.

Issues:

  1. What was the nature of the doctrines of exhaustion and separation of powers?
  2. Whether a standing order that provided for the process amending standing orders was a dispute settlement mechanism.
  3. Whether it was mandatory for Parliament to establish committees for it to hold the Executive through its cabinet secretaries to account. Read More...

Relevant provisions of the law
Article 125 – Power to call for evidence

(1) Either House of Parliament, and any of its committees, has power to summon any person to appear before it for the purpose of giving evidence or providing information.

Article 153 - Decisions, responsibility and accountability of the Cabinet

(3) A Cabinet Secretary shall attend before a committee of the National Assembly, or the Senate, when required by the committee, and answer any question concerning a matter for which the Cabinet Secretary is responsible.

Held:

  1. The doctrines of exhaustion and separation of powers were in a sense, aspects of jurisdiction in the narrower sense, in that, in the case of exhaustion doctrine, though the court may assume jurisdiction, it deferred to other organs that may be statutorily empowered to do so in the first instance before the court’s jurisdiction was invoked. The doctrine of separation of powers was an important constitutional principle whereby constitutional organs were required to keep to their lane and exercise restraint by avoiding undue interference with matters within the constitutional mandate of those other constitutional organs.
  2. A standing order that merely provided for the process amending standing orders could not by any stretch of imagination be a dispute settlement mechanism. A dispute settlement mechanism referred to the process of resolution of disagreements or disputes through some form of mediation, adjudication, or arbitration not a provision that generally provided process amending legislative instruments. No alternative dispute settlement was proven to exist to handle the issues presented in the petition.
  3. It was doubtful that the grievance raised by the petitioners could be addressed by the Standing Orders. The matter was beyond any dispute settlement mechanism in the Senate. In any case, none was proved to exist for purposes of resolving disputes of this nature.
  4. The doctrine of separation of powers affirmed that constitutional organs must exercise restraint and desist from interfering in matters within the constitutional mandate of other arms. The court’s intervention was only limited to the scope of checks and balances. Article 165(d)(ii) of the Constitution gave the court jurisdiction to determine whether anything said to be done under the authority of the Constitution or law was in inconsistent with or in contravention of the Constitution. Parliament, and indeed the Senate was not beyond the reach of the court under the doctrine of separation of powers in a matter where the question was whether the Constitution had been violated.
  5. If matters raised concerned unconstitutionality of legislation, the general presumption was that Acts of Parliament were enacted in conformity with the Constitution. The principal purpose and effect of the impugned provision may also be applied as aid to interpretation.
  6. Article 153(3) of the Constitution laid emphasis on attendances/appearance before the committee if and when the Cabinet Secretary was required by the committee to answer to a matter to which the Cabinet Secretary was responsible. It used the word ‘shall’ to emphasize that the attendance was mandatory. Article 153(3) was however silent on whether or not that was the only method through which the Senate may hold cabinet secretaries accountable.
  7. The Constitution did not make it mandatory for Parliament (National Assembly and the Senate) to establish committees, it used the discretional word ‘may’, ‘Parliament may establish committees’. The court wondered what would happen if Parliament chose not to establish committees, whether that would mean Parliament could not exercise the constitutional mandate to hold the Executive through its cabinet secretaries to account.
  8. Accountability was given to Parliament (the Senate or the National Assembly); committees of Senate or the National Assembly were simply means to assist the National Assembly or Senate to discharge that mandate. Parliament could perform those tasks directly if it so desired and that would not be unconstitutional. It was not beholden to the committees which it had created merely to assist it perform its responsibilities.
  9. The provisions of article 125 of the Constitution were wide enough to accommodate the amendments made through the standing orders. Rather than read all the relevant constitutional provisions holistically the petitioners singly relied on article 153(3) of the Constitution to the exclusion of all others resulting in their narrow interpretation that was not in sync with holistic interpretation of the Constitution.
  10. Even with the application of principles of purpose and effect in constitutional interpretation, the amendments to the Standing Orders by the Senate by and large demonstrated that the intention was to expand the level of accountability by cabinet secretaries by requiring them to attend to issues directly raised by the senators in the House over and above appearing in the committees. That was in consonance with principles of the Constitution by expanding levels of scrutiny to achieve greater accountability and good governance, values that the Constitution treasured under article 10(2) of the Constitution.

Petition dismissed; each party to bear its own costs.