Kenya National Union of Nurses v Moi Teaching and Referral Hospital Board & 2 others [2015] KEELRC 90 (KLR)

The employer submitted proposals to the Commission on 3 September 2014; correspondence and a meeting of 13 January 2015 followed; the Commission rendered its advice on 27 January 2015 that basic wages and financially-implicating terms be maintained at existing levels. The employer acknowledged receipt on 2 February 2015 but signed the CBA the next day on different terms.

The Court of Appeal judges (Githinji, Azangalala, Otieno Odek, Koome and Mwilu JJA) each held SRC advice binding under Articles 230(4)(b) and 259(11). The judge noted obiter that for statutory creatures like the employer, the power to fix remuneration is located in statute or common law, not the Constitution, and flagged the question but, parties not having addressed it, said no more.

Article 230(4)(b) charges the SRC with advising, not fixing, remuneration of public officers. Because the statutory framework bars the SRC from directly engaging unions, unions lack access to its data, creating disharmony with the Article 41 right to collective bargaining. The judge proposed a formula allowing employers a margin of appreciation and disclosure to unions; the rigid advice here was an unfair exercise of the SRC's powers.

The judge noted no party had addressed the question, but the Court of Appeal holding that agreements concluded without SRC involvement are invalid, together with stare decisis, left no option but dismissal. The parties were directed to negotiate afresh taking the SRC advice into account.