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ELRCAllowedJudicial Review Application No. 73 of 2015· [2018] KEELRC 883 (KLR)

Republic v Chief of Staff and Head of the Public Service & another Exparte University of Nairobi & another [2018] KEELRC 883 (KLR)

Employment and Labour Relations Court of Kenya
15 October 2018
2,398 words in judgment
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The bottom line

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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

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Executive summary

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The Ex-parte Applicant, a Professor of Public Health formerly engaged by the University of Nairobi, had his employment terms renegotiated on returning from study leave so as to retain the basic salary (Kshs. 430,895) and house allowance (Kshs. 80,518) he had earned as Deputy Vice-Chancellor at JKUAT. The University confirmed these terms by letter dated 26th August 2014. It later sought to vary the salary downwards, relying on a circular letter from the Chief of Staff and Head of the Public Service, Reference No. OP/SCAC.1/12(11) dated 14th May 2015. The Applicant moved the Employment and Labour Relations Court by Notice of Motion seeking certiorari to quash the circular and prohibition against interference with his remuneration. The Respondents raised grounds of objection, contending inter alia that the Applicant's engagement was an independent contract that had ended and that the Court could not usurp the State Corporations Advisory Committee's mandate. The court framed two issues: whether the prayers sought could be granted, and costs. Relying on its jurisdiction over employment disputes as defined by subject matter, and following its own earlier findings in the Magoha case and Radido J's decision in Tuitoek on the same circular, the court held the circular was issued unilaterally, breached the Applicant's legitimate expectation and fair administrative action, and was untenable. Certiorari and prohibition issued, with costs to the Ex-parte Applicant.

Key legal issues

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01

Whether the Court has jurisdiction to grant certiorari and prohibition in respect of an employment-related circular

Holding

The Court has jurisdiction; the golden test is the subject matter of the dispute (employment and labour relations), not the remedies sought.

Reasoning

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.

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02

Whether the circular OP/SCAC.1/12(11) breached the applicant's legitimate expectation and fair administrative action

Holding

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.

Reasoning

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.

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Legal principles established

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  • 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

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  1. 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. 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. 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

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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, "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.