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ELRCPartially AllowedPetition No. 51 of 2015· [2016] KEELRC 1614 (KLR)

Kenya National Union of Nurse v Chairperson Salaries & Remuneration Commission, Cabinet Secretary Ministry of Health, Chairman Council of Governors, Chairperson Public Service Commission & Attorney General (Petition 51 of 2015) (Employment and Labour) [2016] KEELRC 1614 (KLR)

Employment and Labour Relations Court of Kenya
18 February 2016
5,181 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled the Salaries and Remuneration Commission cannot block or clear union-negotiated CBAs; its role is advisory only.

What this practically means

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Executive summary

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The Kenya National Union of Nurses petitioned the Employment and Labour Relations Court challenging directives by the Salaries and Remuneration Commission (SRC) requiring all public sector CBAs to be submitted to the SRC for advice before registration, and announcing a job evaluation limited to junior public servants with scrapping of certain senior officers' allowances. The petitioner argued these measures violated Article 41(5) on collective bargaining, usurped the Public Service Commission's functions, and were not provided for in law, relying on Articles 230(4) and 260 and sections 57 and 60 of the Labour Relations Act. The SRC maintained its constitutional mandate under Article 230 and the SRC Act; the Council of Governors denied proper enjoinment. The court framed five issues and held that the petitioner's members are public officers, not state officers, so the SRC's function is only to advise national and county governments, not to clear CBAs negotiated by unions; the 29 April 2014 circular therefore contravened Article 41(5) and was declared unconstitutional. The court agreed with Rika J and Lenaola J in the Mathira Water and Kudhehia cases. However, no usurpation of PSC functions was established, as job evaluation is a legitimate tool for SRC's advisory role; but the scrapping of senior officers' allowances breached section 138 of the County Governments Act. The Council of Governors was found improperly enjoined. The petition succeeded against the other respondents, and the SRC was ordered to desist from tying CBAs to job evaluation and to pay the petitioner's costs.

Key legal issues

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01

Legality of the SRC circular requiring CBAs of public sector employees to be submitted to SRC for advice before registration

Holding

The circular was unconstitutional and violated Article 41(5)

Reasoning

The court analysed Articles 230(4) and 260 and found that nurses are not state officers, so SRC's role is only to advise national and county governments. Requiring CBAs to be cleared by SRC before registration amounted to interference with the union's right to freely negotiate CBAs under Article 41(5) and sections 57 and 60 of the Labour Relations Act, and the requirement is not provided for in law.

p. 10
02

Whether the SRC's job evaluation usurped PSC functions and discriminated against senior public servants

Holding

No usurpation of PSC functions, but scrapping allowances of senior public servants contravened section 138 of the County Governments Act

Reasoning

The court found no express constitutional provision vesting in PSC a role taken over by SRC; job evaluation is a legitimate tool to aid SRC's advisory function. However, the pronouncement taking away allowances of public officers seconded to county governments violated section 138(1)(a) and (c) of the County Governments Act, which protects their terms from alteration to their disadvantage.

p. 10
03

Whether CBA conclusion may be linked to completion of job evaluation

Holding

SRC cannot tie conclusion of CBAs to job evaluation

Reasoning

The court held that Article 41(5) must be respected and that linking registration of already negotiated CBAs to job evaluation would amount to renegotiation of agreed terms in the absence of the union, undermining collective bargaining. SRC should devise a way to advise government without intruding into the negotiations themselves.

p. 11
04

Whether the Council of Governors was properly enjoined

Holding

Not properly enjoined

Reasoning

No relief was sought against the Council of Governors and it is not the employer of the petitioner's members; county public service boards have their own legal capacity. The court found the 3rd Respondent should not have been enjoined.

p. 12

Legal principles established

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  • The SRC's mandate over public officers who are not state officers is advisory only, to national and county governments, and cannot extend to directing pre-registration of CBAs negotiated by trade unions
  • The right to collective bargaining under Article 41(5) is exercised between a union and an employer without SRC involvement in the negotiations

Court orders

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  1. 1.Declaration that the 1st Respondent's circular/directions dated 29th April 2014 and the affidavit circular are unconstitutional in so far as they direct that CBAs should not be negotiated without their active involvement
  2. 2.That the 1st Respondent's role should be limited to advising the Government in respect of CBAs involving the Petitioner and other public officers and not to control negotiation and registration of CBAs already negotiated
  3. 3.That the 1st Respondent should not tie conclusion of CBAs to job evaluation
  4. 4.That the 1st Respondent will pay the Petitioner's costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 2, 4, 10, 41, 230, 232, 234, 249, 254(g), 260
  • Public Service Commission ActNo. 13 of 2012
  • Salaries and Remuneration Commission ActSections 11, 26; No. 10 of 2011
  • Labour Relations ActSections 54(1), 57(1), 60(1)
  • County Governments ActSection 138(1)(a) and (c); No. 17 of 2012
  • SRC RegulationsRules 4, 5, 18(1), 18(2)

Cases cited (7)

  • National Union of Water and Sewerage Employees vs. Mathira Water and Sanitation Company Ltd & 2 Others
    [2013] eKLR
  • Kenya Union of Domestic, Hotels, Education and Allied Workers (Kudhehia Workers) vs. Salaries and Remuneration Commission
    [2014] eKLR
  • Anarita Karimi Njeru vs. Republic
    (1976-1980) KLR 1272
  • Meme vs. Republic
    (2004) eKLR
  • Ndyanabo vs. Attorney General
    (2001) 2 EA 485
  • Chemelil Sugar Company Ltd and 2 others vs. Kenya Union of Sugar Plantation and allied workers
    (2014) eKLR
  • Olum vs Attorney General of Uganda
    (2002) 2 EA 508
Jurisdiction invoked
Articles 41, 230, 254(g) and 260 of the Constitution of Kenya 2010

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kenya National Union of Nurse v Chairperson Salaries & Remuneration Commission, Cabinet Secretary Ministry of Health, Chairman Council of Governors, Chairperson Public Service Commission & Attorney General (Petition 51 of 2015)  (Employment and Labour) [2016] KEELRC 1614 (KLR)", Case Analysis (2016). Petition No. 51 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1614/eng@2016-02-18

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