Hussein Guyo v County Government of Isiolo & another [2019] KEELRC 660 (KLR)
The bottom line
#A Kenyan employer cannot backdate a change to your employment terms; any re-designation only takes effect from the date you are actually notified.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction and exhaustion of internal appeal mechanisms
The court entertained the petition notwithstanding the failure to appeal to the Public Service Commission, because the petitioner sought enforcement of constitutional rights to fair administrative action where no written reasons were furnished, making an appeal impracticable
The 2nd Respondent objected under Section 77(3) of the County Governments Act and Section 87 of the Public Service Commission Act. The Petitioner argued that without written reasons for the variation there was nothing to appeal within the 90-day limit, and that Article 22 entitled him to approach the court directly on violation of Article 41(1) and 47 rights. The court proceeded to determine the petition on its merits rather than downing its tools.
Res judicata regarding the suspension
The issue of the Petitioner's suspension, having been determined in JR No. 14 of 2017, was settled and not open for re-litigation
The court distinguished the suspension, which was litigated in JR No. 14 of 2017 and is settled, from the re-designation and backdating, which was new and had not been litigated. Res judicata and issue estoppel apply to the suspension issue only.
Validity of the backdated re-designation to a 5-year contract
The backdated variation violated Section 4 of the Fair Administrative Action Act and could only take effect from 9th July 2018, the date of the impugned letter
The Petitioner was not given prior notice, written reasons, an opportunity to be heard, or information on the audit report relied upon before his terms were altered. The court held that a 2018 decision could not reverse the contract to the date of its original execution in 2014. The permanent and pensionable terms therefore subsist until 9th July 2018, after which the 5-year contract takes effect.
Legal principles established
#- An employer cannot validly re-designate an employee's terms from permanent and pensionable to contract and backdate the re-designation to the date of the original employment contract; a backdated variation must take effect from the date it is made
- Administrative action adversely affecting rights must afford the safeguards in Section 4 of the Fair Administrative Action Act, including written reasons and an opportunity to be heard
- Jurisdiction is everything; a court without jurisdiction must down its tools
- Issues already determined in prior proceedings attain finality and cannot be re-litigated; res judicata and issue estoppel apply
Court orders
#- 1.The employment contract of the Petitioner is re-designated as being on a 5 year contract effective the date of re-designation, i.e. 9th July 2018
- 2.The terms of permanent and pensionable entered into at time of employment to subsist until the date of re-designation being 9th July 2018
- 3.Costs of the Petition be borne by the Respondents
- Jurisdiction invoked
- Articles 20, 21, 22, 27(5), 41(1) and 47 of the Constitution; Section 4 of the Fair Administrative Action Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Hussein Guyo v County Government of Isiolo & another [2019] KEELRC 660 (KLR)", Case Analysis (2019). Petition dated 13th February 2019, filed 19th February 2019 (Meru ELRC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/660/eng@2019-10-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.