Eunice Njeri Wambugu & 5 others v Public Service Board Kirinyaga County [2019] KEELRC 461 (KLR)
The bottom line
#Kenya's Employment Court in Nyeri protected county employees from demotion and salary cuts, ruling they could sue the County Public Service Board directly on constitutional grounds.
What this practically means
#Executive summary
#Key legal issues
#Whether the Respondent exists and has capacity to be a party and to execute court orders
The argument that the Respondent does not exist was rejected; the Board is a body corporate with perpetual succession under Section 57 of the County Governments Act and can effect court orders.
The court held that the County Governments established under Chapter Eleven of the Constitution do not envisage a lacuna between the various arms of county government. Section 57 establishes the Boards as bodies corporate with perpetual succession. The court found the argument hollow, noting pointedly that counsel had received instructions from the very entity he claimed did not exist, and that the Board could therefore act on and comply with court directives.
Whether the Petitioners were required to exhaust the appeal remedy to the Public Service Commission under Section 77 of the County Governments Act before approaching the Court
The exhaustion argument failed; the Petitioners raised constitutional complaints (Articles 28, 30 and 41) which the Public Service Commission has no authority to determine, placing the dispute within the Superior Courts' preserve.
The court accepted that the Petitioners alleged violations of dignity under Article 28, servitude under Article 30 and fair labour practices under Article 41, arising from unilateral re-designation, demotion, salary reduction and recovery of alleged overpayments. Such constitutional disputes are beyond the Public Service Commission's mandate and are reserved for the Superior Courts, so the Petitioners were rightly before the Court and Section 77 was no bar.
Whether conservatory orders should issue pending the hearing of the substantive Petitions
Conservatory orders were granted retaining the Petitioners on their terms of remuneration as at 30th November 2018 and restraining implementation of the Respondent's resolutions in the letter dated 28th March 2019.
Having found that it had jurisdiction and that the Petitioners had raised issues reaching the constitutional threshold, the court concluded that the Petitioners required preservation of the status quo. It issued interim conservatory orders pending hearing of the substantive Petitions, protecting remuneration terms and restraining the re-designation resolutions, while leaving costs to abide the Petitions' outcome.
Legal principles established
#- A County Public Service Board established under Section 57 of the County Governments Act is a body corporate with perpetual succession and has capacity to sue, be sued and effect court orders.
- Where a dispute raises constitutional issues such as violations of dignity and fair labour practices, it falls outside the authority of the Public Service Commission and is reserved for the Superior Courts; Section 77 of the County Governments Act does not oust the Court's jurisdiction over such disputes.
Court orders
#- 1.A conservatory order issued pending the hearing and determination of the substantive Petitions retaining the Petitioners in the service of the Respondent under the terms of remuneration subsisting and in effect as at 30th November 2018
- 2.Pending the hearing and determination of the Petitions, the Respondent restrained from implementing its resolutions as contained in its letter to the Petitioners dated 28th March 2019
- 3.The costs of the motions to abide the outcome in the Petitions
- Jurisdiction invoked
- Section 12 of the Employment and Labour Relations Court Act (original and exclusive jurisdiction); Articles 28, 30, 41, 47 and 50 of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Eunice Njeri Wambugu & 5 others v Public Service Board Kirinyaga County [2019] KEELRC 461 (KLR)", Case Analysis (2019). Notice of Motion applications dated 18th June 2019 (filed under certificates of urgency, with substantive Petitions). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/461/eng@2019-11-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.