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ELRCAllowedPetition dated 23rd March, 2016· [2016] KEELRC 812 (KLR)

Kenneth Kiprotich Koech & another v Governor Bomet County & 4 others [2016] KEELRC 812 (KLR)

Employment and Labour Relations Court
19 July 2016
DMD.K.Njagi Marete
1,848 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court stopped Bomet County from hiring staff without its Public Service Board, a proper budget, or public participation.

What this practically means

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Executive summary

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The petitioners moved the Employment and Labour Relations Court by petition dated 23rd March 2016 challenging the recruitment, appointment and promotion of county employees by the County Government of Bomet without reference to the County Public Service Board, contrary to Sections 59, 60, 63, 74 and 86 of the County Governments Act. They complained of plans to recruit 429 additional staff in Public Health, Medical Services and Agricultural Engineering without approved budgetary allocation, a practice said to have inflated the county wage bill from Kshs 970 million in 2014 to 1.8 billion in 2016, about 40% of county expenditure, in breach of the 35% ceiling under Regulation 25(1)(b) of the Public Finance Management (County Governments) Regulations, 2015 and Article 201(d) of the Constitution. The respondents objected on jurisdiction, contending the dispute concerned budgetary matters rather than labour relations, and argued the petition was overtaken by events since candidates had been interviewed and the Agribusiness recruitment stopped. The 5th respondent, the County Public Service Board, asserted it was the constitutionally mandated recruiting body. The court found it had jurisdiction under Article 162(2)(b), the Employment & Labour Relations Court Act and Section 59 of the County Governments Act, and that the petitioners had established that the recruitment lacked legal or constitutional basis, lacked public participation and would breach the public finance ceilings. The petition was allowed with declarations that the intended recruitment was unconstitutional, null and void, and costs were awarded against the respondents.

Key legal issues

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01

Jurisdiction of the Employment and Labour Relations Court over the petition

Holding

The court has jurisdiction under Article 162(2)(b), the Employment & Labour Relations Court Act and Section 59 of the County Governments Act, quelling the respondents' objection.

Reasoning

The respondents argued the dispute concerned budgetary allocations rather than an employer/employee relationship and fell outside the court's jurisdiction under the Industrial Court Act. The court held that Section 59 of the County Governments Act, establishing the functions of the County Public Service Board, relates directly to the mandate of the court, so the petition fell within its jurisdiction.

p. 4
02

Legality and constitutionality of the intended recruitment of county staff

Holding

The recruitment of 429 additional staff without reference to the County Public Service Board and without budgetary provision was unconstitutional and violated the Public Finance Management Act and its regulations.

Reasoning

The petitioners showed the recruitment bypassed the County Public Service Board contrary to Sections 59, 60, 63, 74 and 86 of the County Governments Act, lacked budgetary approval, and would push expenditure on emoluments to about 40% of county revenue, breaching the 35% ceiling in Regulation 25(1)(b) of the Public Finance Management (County Governments) Regulations, 2015. The respondents tendered no documentary evidence of compliance.

p. 3

Legal principles established

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  • There is no legal or constitutional basis for a county government to recruit staff without involvement of the County Public Service Board, public participation and compliance with public finance laws.
  • County expenditure on wages and benefits of public officers should not exceed 35 per cent of the county government's revenue as required by the Public Finance Management Act and Regulations.

Court orders

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  1. 1.A declaration that the intended employment of 429 additional staff in Public Health, Medical Services and Agricultural Engineering is a violation of the Constitution, the Public Finance Management Act and regulations thereunder and would exceed the Commission on Revenue Allocation ceiling on salaries and emoluments
  2. 2.A declaration that all recruitment made or intended by the respondents, their agents or assigns in Bomet County is unconstitutional, null and void
  3. 3.Costs of the petition to be borne by the respondents

Authorities

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Legislation

  • County Governments Act, No. 17 of 2012Sections 39, 59, 60, 63, 74, 86
  • Public Finance Management ActSection 107(1)
  • Public Finance Management (County Governments) Regulations, 2015 (L.N.35/2015)Regulation 25(1)(b)
  • Constitution of Kenya, 2010Articles 161(1) and (2), 162(2)(b), 201(d), 232(1)(b)
  • Industrial Act (Industrial Court Act)Sections 4 and 12
  • Employment & Labour Relations Court Act
Jurisdiction invoked
Article 162(2)(b) of the Constitution and the Employment & Labour Relations Court Act; Section 59 of the County Governments Act

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, "Kenneth Kiprotich Koech & another v Governor Bomet County & 4 others [2016] KEELRC 812 (KLR)", Case Analysis (2016). Petition dated 23rd March, 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/812/eng@2016-07-19

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