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ELRCPartially AllowedCause No. 1157 of 2015· [2018] KEELRC 2497 (KLR)

Wacuka Barbara Wanjiku & 17 others v Nairobi City County Public Service Board [2018] KEELRC 2497 (KLR)

Employment and Labour Relations Court
19 January 2018
MNMathews N. NdumaMOMaureen Onyango
2,723 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Nairobi's Employment Court ruled 12 county health workers had been permanent employees since their contracts expired, not from a later date the county picked, and awarded each Kshs.1 million.

What this practically means

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Executive summary

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Twelve of eighteen claimants (the 5th, 10th, 13th, 14th, 16th and 18th having withdrawn) sued the Nairobi City County Public Service Board in an undefended suit that proceeded to formal proof. They were Community Health Extension Workers engaged in 2011 on three-year contracts under the Economic Stimulus Programme. Letters from the Ministry of Health dated 24th January 2014 and 7th August 2014 directed the Respondent to absorb them on permanent and pensionable terms upon contract expiry, and a Return to Work Formula recorded the Respondent's written commitment to do so. Instead, during the pendency of the suit the Respondent issued employment letters dated 15th February 2016 with a commencement date of 1st July 2015, in lower positions (Community Health Assistants III) and without the allowances enjoyed by similarly placed colleagues absorbed in May 2015. The suit was undefended and CW1 testified at formal proof. The court found the Claimants had proved their case on a balance of probabilities, held they should have been absorbed on permanent and pensionable terms from contract expiry and at job group H, and that the Respondent violated their rights to fair labour practices, human dignity and equal treatment through irregular payment of a 'special salary', failure to remit NSSF and NHIF dues, and discrimination. Judgment was entered declaring them permanent and pensionable employees from expiry of their contracts, ordering letters of appointment from those dates, allowances in arrears at Kshs.27,000 per month, Kshs.1,000,000 damages per claimant, remittance of statutory dues, interest and costs, with implementation within 30 days.

Key legal issues

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01

Whether the Claimants proved entitlement to be deemed employees on permanent and pensionable terms from expiry of their contracts

Holding

Yes - the National Government directed absorption on permanent and pensionable terms upon contract expiry, and a Return to Work Formula committed the Respondent to honour this; employment dates back to contract expiry, not the unilateral date of 1st July 2015 fixed by the Respondent.

Reasoning

The court found two letters dated 7th August 2014 and 24th January 2014 directed the Respondent to absorb the Claimants on permanent and pensionable terms once their three-year contracts expired. The Respondent ignored these and later issued employment letters backdating commencement only to 1st July 2015. Relying on the Murang'a County Public Service Board decision, the court held the Claimants should be treated as permanent employees from contract expiry, and placed in job group H given their service and qualifications.

p. 4
02

Whether the Respondent violated the Claimants' constitutional rights and statutory duties

Holding

Yes - the Respondent's failure to absorb the Claimants, irregular payment of a 'special salary', failure to remit NSSF/NHIF and discriminatory treatment vis-à-vis similarly placed Economic Stimulus Programme workers violated their rights to fair labour practices, human dignity and equal treatment.

Reasoning

The court found the Claimants endured over two years of uncertainty, irregular salaries sometimes paid only after strikes or go-slows, ridicule and financial distress, constituting psychological torture and inhuman and degrading treatment. The Respondent also failed to remit NSSF and NHIF deductions and treated the Claimants differently from colleagues absorbed in May 2015 with better terms, amounting to unlawful discrimination. Each Claimant was awarded Kshs.1,000,000.

p. 6

Legal principles established

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  • Where the employer has directed or undertaken to absorb contract employees into permanent and pensionable terms upon expiry of their contracts, employment on such terms takes effect from the date of expiry of the contracts, not from a date unilaterally fixed by the employer.
  • Irregular payment of salaries, non-remittance of statutory deductions and discriminatory treatment of employees constitutes violation of the constitutional rights to fair labour practices, human dignity and equal treatment.

Court orders

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  1. 1.Declaration that the Claimants are employees of the Respondent on permanent and pensionable terms from 25th May 2014 for the 1st to 4th, 7th to 9th, 11th, 12th and 14th to 15th, 17th, 19th to 20th Claimants, and from 17th December for the 6th Claimant
  2. 2.The Respondent is directed to issue the Claimants with letters of appointment from the dates of expiry of their respective contracts
  3. 3.The Respondent to pay each of the Claimants allowances in arrears from the date of expiry of their contract at Kshs.27,000 per month
  4. 4.Declaration that the Respondent violated the Claimants' rights to fair labour practice, human dignity and equal treatment before the law, with each Claimant awarded Kshs.1,000,000
  5. 5.The Respondent to remit all deducted NSSF and NHIF dues on behalf of each Claimant
  6. 6.Interest at court rates on the allowances award from date of filing suit
  7. 7.Interest at court rates on the damages award from date of judgment
  8. 8.Respondent to pay the costs of the suit in respect of each claimant
  9. 9.Judgment to be implemented within 30 days

Authorities

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Legislation

  • Employment ActSections 9, 10, 18, 18(2)(c), 20
  • Constitution of KenyaArticles 29(9), 41

Cases cited (4)

  • Murang'a County Public Service Board vs Grace N. Makori & 78 Others
    [2015] eKLR
  • VMK Vs CUEA
    [2013] eKLR
  • Nasibo Dabaso Jillo Vs Commander Kenya Army & another
    [2015] eKLR
  • Joseph Makau Munyao & 4 others Vs Kenya Ports Authority & Another
    [2016] eKLR
Jurisdiction invoked
Employment and labour relations jurisdiction under Article 162(2) of the Constitution (court not explicit in judgment; claim founded on Employment Act, 2007 and Articles 29, 41 of the Constitution)

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, "Wacuka Barbara Wanjiku & 17 others v Nairobi City County Public Service Board [2018] KEELRC 2497 (KLR)", Case Analysis (2018). Cause No. 1157 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2497/eng@2018-01-19

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