Union of Civil Servants v Permanaent Secretary, Ministry of State for Public Service & another [2016] KEELRC 1483 (KLR)
The bottom line
#Kenya's Employment Court invalidated a public service scheme and circular that unfairly blocked clerical officers from promotion, ordering their review and the officers' elevation.
What this practically means
#Executive summary
#Key legal issues
#Whether the 1st respondent contravened Articles 232(1)(i)(i) and 234(1)(f) of the Constitution
Yes - the March 2007 scheme of service and the 8.10.2010 circular contravened the constitutional value of equal opportunities for advancement in public service and the Commission's function of developing human resources
Article 232(1)(i) affords adequate and equal opportunities for appointment, training and advancement in the public service. The offensive provisions of the March 2007 scheme and the 2010 circular disadvantaged clerical officers relative to comparable cadres, denied them the common establishment grades G, H, J and K, and acted against the Commission's circular Ref. No. 3/1/I/III dated 15.09.2010, thereby contravening the Commission's Article 234(1)(f) function to develop human resources in the public service.
Whether the petitioner is entitled to the remedies prayed for
Entitled to all remedies except general and special damages, which failed as abandoned and unjustified
There was no material on record to deny the prayers; the respondent filed no answer. The court granted the declarations and orders setting aside the circular and scheme, ordering competitive review and re-designation of clerical officers, but refused damages because no submissions were made and the loss was not established.
Legal principles established
#- Adequate and equal opportunities for appointment, training and advancement at all levels of the public service is a value and principle of public service under Article 232(1)(i); a scheme of service or circular that denies such equality contravenes the Constitution
- An administrative organ issuing guidelines that act against a communication by the Public Service Commission contravenes the Commission's constitutional function to develop human resources in the public service under Article 234(1)(f)
- Where a respondent files no replying affidavit or answer to a petition, uncontroverted material on record may found judgment for the petitioner
Court orders
#- 1.Circular ref. No. MSPS MIN. 1/3/4/67 of 8.10.2010 by the Permanent Secretary, Ministry of Public Service, is set aside
- 2.The scheme of service for clerical officers issued in March 2007 by the Permanent Secretary, Ministry of State for Public Service is set aside in its entirety to be reviewed competitively; parties to undertake relevant review consultations or meetings and file in court the revised scheme of service or report by 01.07.2016 and to mention the matter for recording the settlement
- 3.Clerical officers with recognised academic certificates be elevated to conform to other schemes of service and particularly the scheme of service for record management officers and human resources management assistants
- 4.Clerical officers be re-designated and absorbed in the relevant scheme of service after passing the requisite proficiency examinations in the respective clerical officer's preference
- 5.The respondents to pay costs of the petition
- Jurisdiction invoked
- Articles 232(1)(i)(i) and 234(1)(f) of the Constitution of Kenya, 2010 (petition for contravention of rights and values and principles of public service)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Union of Civil Servants v Permanaent Secretary, Ministry of State for Public Service & another [2016] KEELRC 1483 (KLR)", Case Analysis (2016). Petition filed 31.10.2012 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1483/eng@2016-03-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.