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ELRCPartially AllowedPetition (E&LRC, Nakuru), Petitioners v Judicial Service Commission· [2017] KEELRC 1722 (KLR)

James Ang’awa Atanda & 10 others v Judicial Service Commission [2017] KEELRC 1722 (KLR)

Employment and Labour Relations Court
24 February 2017
4,095 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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Kenyan employers cannot change your job contract without consulting you, even if you accept and work under the new terms.

What this practically means

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Executive summary

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Eleven Legal Researchers employed by the Judicial Service Commission petitioned the Employment and Labour Relations Court at Nakuru alleging that unilateral variations of their employment contracts violated their constitutional and contractual rights. The 1st to 7th Petitioners, engaged on 13 June 2012 on contracts without a stated duration, had their contracts unilaterally converted in January 2014 to 3-year fixed term contracts, with a reduced responsibility allowance and withdrawal of a risk allowance. The 8th to 11th Petitioners, on 2-year contracts, were issued fresh contracts effective 1 July 2016 with re-designation as Law Clerks, non-renewable terms and reduced remuneration. The Court found the first variation unlawful: it was made unilaterally and without consultation, contrary to the common law requirement of mutual agreement and section 10(5) of the Employment Act, and constituted a violation of the right to fair labour practices under Article 41 because it took away vested rights. The second set of changes was held not to be a variation at all but offers of fresh, distinct contracts after expiry of the earlier ones, so no violation was found for the 8th to 11th Petitioners, though placing them on fresh probation was criticised as improper. The Court declined to find a violation of fair administrative action, holding the Commission acted as an employer and not in exercise of administrative authority, and rejected the legitimate expectation claim as notice of deliberations was not an express, clear and unambiguous promise. A declaration issued for the 1st to 7th Petitioners with damages of Kshs 750,000 each; the claims of the 8th to 11th were dismissed; and, given the ongoing employment relationship, each party was ordered to bear its own costs.

Key legal issues

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01

Locus of the Petitioners as a representative suit

Holding

The Petition was a joint petition in individual capacities under Article 22(1); failure to file written authority was not fatal.

Reasoning

The Respondent argued the Petition was a defective representative suit lacking authority from the 1st Petitioner. The Court found that the Petition as filed did not reflect that character; all eleven Petitioners sued jointly in their own capacities, a step contemplated by Article 22(1), so absence of written authority was immaterial.

p. 3
02

Whether the Petition disclosed a constitutional dispute

Holding

Objection premature; substantive determination would dispose of it.

Reasoning

The Respondent argued the dispute concerned private law rights and ordinary suit was the proper mode. The Court held that whether the ordinary route was proper cannot be determined at a preliminary stage, and that a positive answer on the substantive issues would dispose of the objection.

p. 3
03

Whether variation of contracts constituted administrative action engaging Article 47

Holding

No; the Respondent was acting as an employer, not exercising administrative or quasi-judicial authority.

Reasoning

The Court expressed misgivings about applying fair administrative action to ordinary employment relationships, taking comfort in Chirwa v Transnet, noting such application would lead to absurd results, and found the JSC was not exercising administrative authority over the Petitioners in varying their contracts.

p. 5
04

Whether the 1st Variation violated the right to fair labour practices

Holding

Yes; unilateral variation without consultation taking away vested rights was unlawful and an unfair labour practice.

Reasoning

The conversion of the 1st to 7th Petitioners' open ended contracts to 3-year fixed term contracts, reduction of responsibility allowance and withdrawal of risk allowance was done unilaterally without consultation, contrary to section 10(5) of the Employment Act and the common law requirement of mutual agreement. The Respondent thereby repudiated the initial contracts, an unfair labour practice, even though the Petitioners accepted the new contracts.

p. 5
05

Whether the 2nd Variation violated fair labour practices

Holding

No; the fresh contracts of 1 July 2016 were new distinct contracts after expiry, not variations.

Reasoning

The 8th to 11th Petitioners' definite contracts expired around May 2016, were extended pending formal renewal, and fresh contracts embodying revised terms were then issued. These were offers of new contracts, not unilateral variations or repudiation, so no violation arose. However, placing them on fresh probation was improper.

p. 6
06

Whether legitimate expectation of renewal arose

Holding

No; notice of deliberations was not an express, clear and unambiguous promise.

Reasoning

Applying the Supreme Court's principles in Communications Commission of Kenya v Royal Media Services, an express, clear and unambiguous promise by a public authority is required. The JSC's communications that it was deliberating on long term contracts fell short, and the South African authority relied on turned on a different statutory concept of reasonable expectation.

p. 6

Legal principles established

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  • A unilateral variation of an employment contract without consultation, taking away vested rights and entitlements, amounts to an unfair labour practice under Article 41 even where the employee accepts and serves under the new contract.
  • An employee who accepts a fundamentally varied contract may still claim breach of the earlier contract; the options are not limited to staying or claiming constructive dismissal.
  • Fair labour practice, though undefined, draws its content from statutory prescriptions of the Employment Act and common law principles against unilateral variation.

Court orders

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  1. 1.Declaration that the unilateral variation of the 1st to 7th Petitioners' contracts of employment from open ended contracts to 3 year contracts violated the right to fair labour practices under Article 41 of the Constitution
  2. 2.Award of Kshs 750,000/- each to the 1st to 7th Petitioners as damages for unfair labour practice(s)/breach of contract(s)
  3. 3.Dismissal of the Petitions of the 8th to 11th Petitioners
  4. 4.Each party to bear own costs
Jurisdiction invoked
Article 23 of the Constitution and section 12(3) of the Employment and Labour Relations Court 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, "James Ang’awa Atanda & 10 others v Judicial Service Commission [2017] KEELRC 1722 (KLR)", Case Analysis (2017). Petition (E&LRC, Nakuru), Petitioners v Judicial Service Commission. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2017/1722/eng@2017-02-24

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