Republic v Chief of Staff and Head of the Public Service & another Exparte University of Nairobi & another [2018] KEELRC 883 (KLR)
The bottom line
#Kenya's Employment Court quashed a government circular that cut a professor's agreed salary, ruling public employers cannot unilaterally change confirmed pay terms.
What this practically means
#Executive summary
#Key legal issues
#Whether the Court has jurisdiction to grant certiorari and prohibition in respect of an employment-related circular
The Court has jurisdiction; the golden test is the subject matter of the dispute (employment and labour relations), not the remedies sought.
Relying on Margaret Nyaruai Theuri v National Police Service Commission and Seven Seas Technologies v Eric Chege, the court held that its original and unlimited jurisdiction over employment disputes spreads to all issues in the employment relationship, including judicial review remedies and enforcement of constitutional rights, since the dispute concerns the applicant's remuneration under an employment contract.
Whether the circular OP/SCAC.1/12(11) breached the applicant's legitimate expectation and fair administrative action
Yes. The circular was issued unilaterally, without engaging those affected and without regard to legitimate expectations founded on the confirmed contract terms, and is not tenable.
The University of Nairobi had confirmed in writing that the applicant would retain his DVC-level basic salary and house allowance. The circular unilaterally varied these terms contrary to Section 10 of the Employment Act and breached legitimate expectation as defined in the Waswa and Keroche authorities. Following its own earlier finding in the Magoha case and Radido J's finding in Tuitoek, the court held the circular untenable and quashed it.
Legal principles established
#- The ELRC's jurisdiction is measured by subject matter (employment and labour relations disputes), not by the remedies sought or procedure used.
- An administrative action adversely affecting an individual must be preceded by an opportunity to be heard under Article 47(3) and the Fair Administrative Action Act.
- Legitimate expectation extends to future benefits promised by a public body, and public authorities must be held to their promises and practices.
Court orders
#- 1.An order of Certiorari to remove to the Court and quash the Circular Letter by the 1st Respondent Reference No. OP/SCA.1/12 (11) dated 14th May 2015
- 2.An order of prohibition prohibiting the 1st, 2nd and 3rd Respondents from amending, varying, vacating or in any manner interfering with the Applicant's remuneration based on the impugned circular
- 3.Costs of the entire proceedings awarded to the Ex-Parte Applicant
- Jurisdiction invoked
- Articles 159(1), 162(2)(a) as read with Article 165(5) and (6), Articles 22(1) and 258(1) of the Constitution; Employment and Labour Relations Act, 2011
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Chief of Staff and Head of the Public Service & another Exparte University of Nairobi & another [2018] KEELRC 883 (KLR)", Case Analysis (2018). Judicial Review Application No. 73 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/883/eng@2018-10-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.