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ELRCDismissedConsolidated Judicial Review Applications (first filed 15.05.2019, last filed 29.05.2019, including Application No. 6 of 2019)· [2019] KEELRC 157 (KLR)

Republic v Kenya Copyright Board & 2 others Exparte Meshack V Otieno & 4 others [2019] KEELRC 157 (KLR)

Employment and Labour Relations Court
6 December 2019
BOByram Ongaya
2,791 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~11 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled KECOBO couldn't pay copyright inspectors allowances that lacked the mandatory approval of the Salaries and Remuneration Commission.

What this practically means

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Executive summary

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The ex-parte applicants, copyright inspectors employed by the Kenya Copyright Board (KECOBO), sought judicial review orders of certiorari, mandamus and prohibition challenging an internal memorandum dated 29.08.2018 by which KECOBO suspended their risk and extraneous allowances following advice from the Salaries and Remuneration Commission (SRC), citing audit queries. The applicants argued the allowances were contractual benefits, that their duties were genuinely extraneous and risky, that they were not heard before suspension contrary to Articles 41 and 47 and the HR policy, and that the SRC communication was advisory, not a directive. KECOBO explained that it had maintained allowances pending job evaluation, that the Auditor-General queried the payments, and that SRC had directed their cessation; it had appealed and was to make a fresh request. SRC maintained that under Article 230(4) and section 11 of the SRC Act its advice is mandatory under Article 259(11), and that the allowances had been introduced without its approval. The court found that the extraneous allowance was introduced in 2013 by KECOBO's Board without SRC advisory, and no decision established the risk allowance. The contractual terms were therefore illegal and unenforceable, the Article 41 and 47 claims collapsed as founded on an illegal term, and no legitimate expectation could arise from an illegal term. The allowances were suspended, not abolished, with SRC directing a fresh justified request. The judicial review applications were dismissed with each party bearing own costs.

Key legal issues

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01

Legality of payment of risk and extraneous allowances without SRC advisory

Holding

The allowances could not lawfully be paid without SRC advisory; the contractual term was illegal, null and void

Reasoning

The extraneous allowance was introduced by the 1st respondent's Board in 2013 when SRC was in place, and no Board or SRC decision established the risk allowance. SRC advice under Article 259(11) is mandatory. Enforcing the terms would contravene public interest, so the terms are unenforceable and the constitutional claims founded on them collapse.

p. 4
02

Alleged violation of Articles 41 and 47

Holding

Claims collapse as founded on an illegal contractual term

Reasoning

Though contracts would otherwise have been breached, the vested benefit rested on an illegal term; a violation claim predicated on enforcing an illegal benefit cannot stand. The suspension process also involved a path for review via SRC.

p. 4
03

Legitimate expectation

Holding

No legitimate expectation can arise from an illegal term; allowances suspended pending fresh SRC consideration

Reasoning

The allowances were suspended, not abolished, and SRC directed a fresh request with justifications. The 1st respondent was properly guided, and the applicants are equally bound by that process.

p. 4

Legal principles established

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  • Public officers' remuneration of allowances requires SRC advisory; contractual terms paying allowances without such advisory are illegal and unenforceable
  • No legitimate expectation can be founded on an illegal contractual term
  • Courts will not aid illegality

Court orders

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  1. 1.The judicial review applications filed for the applicants are dismissed
  2. 2.Each party to bear own costs of the applications

Authorities

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Legislation

  • Constitution of Kenya 2010Article 230(4), Article 41, Article 47, Article 259(11)
  • Copyright Actsection 3
  • Salaries and Remuneration Commission Actsection 11
  • Fair Administrative Action Actsection 7
  • Civil Procedure RulesOrder 53 rule 3(1)
  • Employment and Labour Relations Court (Procedure) RulesRules 2 and 3
  • Public Service Human Resource Policies and Procedures ManualC.I(3), Annex C.13 (May 2016)
Jurisdiction invoked
Order 53 rule 3(1) of the Civil Procedure Rules; Rules 2 and 3 of the Employment and Labour Relations Court (Procedure) Rules; Section 7 of the Fair Administrative Action Act, 2015

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 Kenya Copyright Board & 2 others Exparte Meshack V Otieno & 4 others [2019] KEELRC 157 (KLR)", Case Analysis (2019). Consolidated Judicial Review Applications (first filed 15.05.2019, last filed 29.05.2019, including Application No. 6 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/157/eng@2019-12-06

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