Miyawa & 7 others v Judicial Service Commission (Petition 29 of 2016) [2017] KEELRC 1735 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Locus standi of the Petitioners
The Petition was a joint petition in individual capacities under Article 22(1), not a representative suit
The Respondent argued the Petition was a defective representative suit lacking authority from the 1st Petitioner. The Court found the Petition did not reflect that; all Petitioners joined and presented a joint petition individually, which Article 22(1) contemplates.
Whether the dispute was constitutional or private law
The objection was premature and would be resolved by the substantive issues
The Respondent contended the dispute was private law. The Court held such a determination cannot be made at the preliminary stage and a positive answer to substantive issues would dispose of the objection.
Right to fair administrative action in employment
The Respondent was not exercising administrative authority; the Court expressed misgivings about applying Article 47 to ordinary employment relationships
Relying on Chirwa v Transnet (CC SA), the Court reasoned that applying fair administrative action to ordinary employment would lead to absurd results, and declined detailed reasons, finding the Respondent acted as an employer, not in exercise of administrative power.
Right to fair labour practices - 7th and 8th Petitioners
Unilateral variation of their open-ended contracts to fixed-term without consultation violated Article 41
The Respondent admitted the 1st Variation and did not suggest consultation. The variation took away vested rights and entitlements, was unlawful and amounted to an unfair labour practice despite acceptance of new contracts.
Right to fair labour practices - 1st to 6th Petitioners
No violation; their new contracts were distinct and separate after expiry of initial contracts
The 1st to 6th Petitioners were on definite contracts which expired, were extended pending renewal, and new contracts with revised terms were offered and accepted. There was no repudiation of their contracts.
Legitimate expectation
No legitimate expectation of renewal arose from statements about deliberations on long-term contracts
Applying the Supreme Court's CCK v Royal Media principles, mere notice of deliberations was not an express, clear and unambiguous promise by a public authority. The South African reasonable-expectation case relied on was distinguished as turning on a different statutory framework.
Legal principles established
#- A unilateral variation of an employment contract, without consultation, adversely affecting the employee is an unfair labour practice
- An employee who accepts a repudiated/varied contract may still claim breach of the earlier contract; the options are more than two
- Common law requirement of mutual agreement for variation and statutory consultation requirement are ingredients of fair labour practices
Court orders
#- 1.A declaration that the unilateral variation of the 7th and 8th Petitioners' contracts of employment from open ended contracts to 3 year contracts was in violation of the right to fair labour practices as enshrined in Article 41 of the Constitution
- 2.The 7th and 8th Petitioners be awarded Kshs 750,000/- each as damages for unfair labour practice(s)/breach of contract(s)
- 3.The Petition by the 1st to 6th Petitioners is dismissed
- 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
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kiogora v Ndarawetta Tea Factory Ltd (Cause E006 of 2025) [2026] KEELRC 2446 (KLR)[2026] KEELRC 2446 (KLR)23 Jul 2026
- Njoroge v Thika Water and Sewerage Company Limited & 4 others (Cause 1338 of 2018) [2024] KEELRC 2353 (KLR)[2024] KEELRC 2353 (KLR)26 Sept 2024applied
Cite this brief
#Cite this brief
Caselaw, "Miyawa & 7 others v Judicial Service Commission (Petition 29 of 2016) [2017] KEELRC 1735 (KLR)", Case Analysis (2017). Petition No. 15 of 2016 (as filed 15 August 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2017/1735/eng@2017-02-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.