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ELRCPartially AllowedNotice of Motion Application dated 12th May 2015 (Claim against County Government of Kiambu)· [2015] KEELRC 756 (KLR)

Kenya National Union of Nurses v Kiambu County Public Service Board & 2 others [2015] KEELRC 756 (KLR)

Employment and Labour Relations Court
3 July 2015
MNMathews Nderi Nduma
1,572 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ordered Kiambu County to restore a nurse's withheld salary immediately and warned officials of contempt if they ignored the order.

What this practically means

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Executive summary

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The Claimant union, acting on behalf of the Grievant Eunice Mwangi, moved the Employment and Labour Relations Court by Notice of Motion dated 12th May 2015 seeking confirmation and enforcement of interim orders issued in April 2015, restraining the County Government of Kiambu from altering the Grievant's terms of employment to her disadvantage, directing release of withheld salary and allowances from November 2014 to March 2015 together with contractual increments, and restoration of her name to the County payroll. The 2nd and 3rd Respondents (the Attorney General and the Public Service Commission) objected to their joinder, arguing no specific orders were sought against them. The 1st Respondent opposed the application on grounds including prematurity under Section 77(2) of the County Governments Act, impermissibility of specific performance of a contract of service, and the Grievant's alleged failure to execute a contract offered, asserting she was never on permanent and pensionable terms. The court held that County Health Services is a devolved county function, that the Public Service Commission has a role in the establishment of public offices thereby justifying joinder, and declined to uphold the objection to the 2nd and 3rd Respondents. Finding the Grievant continued to serve without salary and that the Respondent had not sought to set aside the orders of 9th April 2015, the court confirmed the interim orders, certified a prima facie case and likelihood of irreparable harm, found the balance of convenience favoured the Grievant, and directed immediate compliance failing which contempt proceedings would be instituted against relevant officials of the Kiambu County Public Service Board jointly and severally.

Key legal issues

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01

Joinder of the Attorney General and the Public Service Commission

Holding

The objection to the joinder of the 2nd and 3rd Respondents was not upheld; the Commission has a role in establishment of public offices and the Attorney General properly represents it

Reasoning

The court noted that no specific orders were sought against the Commission, but found that the Grievant is a public officer and the Public Service Commission has a role in the establishment of offices in County Governments and deployment of officers to those offices. That connection justified the Commission's inclusion and the Attorney General's representation. County Health Services, under which the Grievant serves, is a devolved county function under the Fourth Schedule.

p. 2
02

Compliance with interim orders pending the main suit

Holding

The 1st Respondent, being aware of the orders of 9th April 2015 which it had not sought to set aside, was obliged to comply; the orders were confirmed

Reasoning

The Grievant had continued to serve without salary. The court held that notwithstanding the pending dispute to be resolved at full hearing, the Respondent was obliged to obey the order. The Respondent instead sought to justify disobedience of an order it had not moved to set aside. The court found a prima facie case, likelihood of irreparable harm, and balance of convenience favouring the Grievant who continues to provide services.

p. 4
03

Prematurity of suit for failure to appeal to the Public Service Commission under Section 77(2) of the County Governments Act

Holding

This objection was raised by the 1st Respondent but the court, confirming the interim orders, did not uphold it at this interlocutory stage

Reasoning

The 1st Respondent argued the dispute should first lie as an appeal with the Public Service Commission under Section 77(2) of the County Governments Act, relying on case law requiring strict adherence to prescribed procedures, including the Karume case. The court nonetheless confirmed the interim orders, finding a prima facie case established and directing compliance, effectively declining to dismiss the suit as premature at this stage.

p. 2

Legal principles established

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  • Where there is a clear procedure for redress of a grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed
  • A party served with or aware of a court order must obey it unless it is set aside, notwithstanding a pending dispute on the merits
  • County Health Services is a function of the County Government under Part II of the Fourth Schedule to the Constitution

Court orders

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  1. 1.The objection with regard to the 2nd and 3rd Respondents is not upheld
  2. 2.The Court confirms the orders issued on 9th April 2015, being the release of the withheld salary and allowances of the Grievant from November 2014 to March 2015 with the increment per her letter of appointment dated 11th August 2014, pending the hearing and determination of the main suit
  3. 3.An interim order reverting the Grievant's name to the Kiambu County payroll until further directions of the Court, pending the hearing and determination of the main suit
  4. 4.The ruling be served directly on the 1st Respondent who should immediately comply with the same failing which contempt proceedings to be instituted against the relevant officials of the Kiambu County Public Service Board jointly and severally

Authorities

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Legislation

  • Constitution of Kenya, 2010Fourth Schedule Part II
  • Constitution of Kenya, 2010Article 156(4)
  • Constitution of Kenya, 2010Article 233
  • Constitution of Kenya, 2010Article 234(2)
  • County Governments Act No. 17 of 2012Section 77(2)

Cases cited (2)

  • Nakuru County Government v Joseph Lenai
    Petition 3 of 2014
  • Speaker of The Kenya National Assembly v The Hon. James Njenga Karume
    C. Appl. No. NAI 92 of 1992
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment dispute relating to County Health Services, a devolved function under Part II of the Fourth Schedule to the Constitution of Kenya, 2010

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, "Kenya National Union of Nurses v Kiambu County Public Service Board & 2 others [2015] KEELRC 756 (KLR)", Case Analysis (2015). Notice of Motion Application dated 12th May 2015 (Claim against County Government of Kiambu). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/756/eng@2015-07-03

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