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ELRCDismissedPetition (number not stated in judgment)· [2016] KEELRC 940 (KLR)

Union of Kenya Civil Servants (UKCS) v Salaries and Remuneration Commission & another [2016] KEELRC 940 (KLR)

Employment and Labour Relations Court
15 July 2016
LNLinnet Ndolo
2,700 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 and Labour Relations Court upheld the SRC's power to set pay and allowances for all public officers, including state corporation employees.

What this practically means

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Executive summary

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The Union of Kenya Civil Servants petitioned the Employment and Labour Relations Court challenging three circulars issued by the Salaries and Remuneration Commission in late 2014 (on leave allowance, review of all allowances, and car loan and mortgage benefits) as well as the Public Sector Remuneration and Benefits Policy Framework and Policy of June 2015. The Petitioner, which claimed a recognition agreement as the sole union for civil servants, sought conservatory orders, declarations that the circulars and policies were null and void, and orders of certiorari and prohibition, arguing that the SRC acted ultra vires Article 230 of the Constitution and Section 11 of the SRC Act and failed to facilitate genuine public participation. The SRC, in a replying affidavit sworn by its Secretary Anne Gitau, contended it acted within its mandate under Article 230(5) and that the policy development was extensively consultative. The Attorney General filed grounds of opposition supporting the SRC. Justice Linnet Ndolo framed three issues: whether the SRC exceeded its mandate, whether public participation was facilitated, and whether the Petitioner was entitled to remedies. Applying the Court of Appeal decision in Teachers Service Commission v KNUT and Rika J's decision in the Mathira Water case, the Court held the SRC's advice under Article 230(4)(b) is binding and its mandate covers all public officers. On participation, applying Gakuru, Doctors for Life, Merafong and CORD, it held participation need only be reasonable and feasible. The SRC's reports demonstrated adequate stakeholder involvement. The petition was dismissed with no order as to costs, each party bearing its own costs as a public interest petition.

Key legal issues

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01

Whether the SRC overstepped its mandate under Article 230 and Section 11 of the SRC Act

Holding

The SRC acted within its mandate; its advice under Article 230(4)(b) is binding and its remit covers all public officers including state corporation employees.

Reasoning

The Court of Appeal in Teachers Service Commission v KNUT had held SRC advice binding, and this Court, bound by stare decisis, agreed. The Court also agreed with Rika J that Article 230(4)(b) covers all public servants. The 2010 Constitution aimed to cure an unchecked wage bill and wage disparities, achievable only if the SRC covers the whole public service.

p. 5
02

Whether there was adequate public participation in developing the Remuneration and Benefits Policy

Holding

Public participation was adequate; the SRC met the constitutional threshold under Articles 10 and 201.

Reasoning

Relying on Gakuru, Doctors for Life, Merafong and CORD, the Court held participation must be real and credible but reasonable in the circumstances; not every Kenyan's views can prevail. The SRC's reports on the wage bill dialogue and stakeholder consultative meetings showed involvement of stakeholders at national and county levels.

p. 7

Legal principles established

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  • The advice of the Salaries and Remuneration Commission under Article 230(4)(b) on remuneration and benefits of all public officers is binding on national and county governments.
  • The SRC's mandate under Article 230(4)(b) extends to all public servants, including employees of state corporations.
  • Whether public participation has been duly facilitated is assessed by what is reasonable and feasible in the circumstances of each case; it need not involve every member of the public directly.
  • Public involvement connotes taking steps towards ensuring public participation, and being involved does not mean one's view must necessarily prevail.

Court orders

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  1. 1.The Petitioner's Petition is dismissed
  2. 2.Each party to bear its own costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 10
  • Constitution of Kenya, 2010Article 201
  • Constitution of Kenya, 2010Article 230(4) and 230(5)
  • Salaries and Remuneration Commission Act, 2012Sections 11 and 13

Cases cited (6)

  • Teachers Service Commission v Kenya National Union of Teachers
    [2015] eKLR
  • National Union of Water & Sewerage Employees v Mathira Water and Sanitation Company Limited & 2 Others
    [2013] eKLR
  • Robert N. Gakuru & Others v Governor of Kiambu County & 3 Others
    [2014] eKLR
  • Doctors for Life International v Speaker of the National Assembly & Others
    CCCT2/05 [2006] (12) BCLR 1399 (CC); 2006(6)SA 416
  • Marefong Demarcation Forum & Others v President of the Republic of South Africa & Others
    (CCT 41/07) [2008] ZACC 10; 2008(5) SA 171(CC); 2008(10)BCLR 968(CC)
  • Coalition for Reforms and Democracy (CORD) & 2 Others v Republic of Kenya & 10 Others
    [2015] eKLR
Jurisdiction invoked
Article 165 of the Constitution of Kenya 2010 (High Court/ELRC jurisdiction over constitutional petitions); petition alleging violation of Articles 10, 201 and 230

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, "Union of Kenya Civil Servants (UKCS) v Salaries and Remuneration Commission & another [2016] KEELRC 940 (KLR)", Case Analysis (2016). Petition (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/940/eng@2016-07-15

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