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ELRCDismissedPetition dated 14th March 2018· [2019] KEELRC 2619 (KLR)

Kenya County Government Workers Union v Nyeri County Government & another (Constitutional Petition 4 of 2018) [2019] KEELRC 2619 (KLR)

Employment and Labour Relations Court
12 March 2019
NMNzioki Wa Makau
1,516 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A union's court challenge to county salary harmonisation failed because it skipped the required appeal to Kenya's Public Service Commission.

What this practically means

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Executive summary

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The Petitioner, a union representing former employees of defunct local authorities absorbed into the county civil service, challenged the harmonisation and grading of its members' salary scales from scales 1-18 to Job Groups 'A' to 'N'. It argued that the Respondents effected the harmonisation without involving the union, thereby abridging the CBA, imposing disguised pay cuts through advertised senior positions, and implementing SRC circulars that would cap members' salaries and deny future increments. The Petitioner sought a declaration of unconstitutionality and an order of certiorari quashing the implementation of the proposed salary scales. The Respondents countered that the harmonisation took into account employees' salaries, qualifications and SRC guidelines, offered career progression absent in the local authority scheme, and that there was correspondence evidencing engagement with the Petitioner. Both parties cited Republic v National Police Service Exparte Daniel Chacha Chacha on the contextual nature of procedural fairness. The court found that some element of procedural fairness existed given the communication between the parties, though the 1st Respondent should have engaged the Petitioner better. However, the court held that Section 77 of the County Governments Act provided an adequate alternative remedy - an appeal to the Public Service Commission on decisions relating to remuneration and terms of service - and, applying the Court of Appeal's decision in Secretary, County Public Service Board v Hulbhai Gedi Abdille, that the Petitioner ought to have pursued that avenue. The Petition was accordingly dismissed with costs.

Key legal issues

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01

Procedural fairness in the harmonisation of salary scales

Holding

There was some element of procedural fairness since the Petitioner was in communication with the 1st Respondent, though engagement could have been better

Reasoning

The court adopted the treatise in Michael Fordham's Judicial Review Handbook as cited by Odunga J in the Chacha case, that procedural fairness is a fiexi-principle and entirely contextual. Because correspondence evidenced communication between the Petitioner and the 1st Respondent regarding the harmonisation process, some element of procedural fairness existed, though the 1st Respondent should have engaged the Petitioner better.

p. 3
02

Exhaustion of alternative remedies under Section 77 of the County Governments Act

Holding

The Petition was filed in disregard of the statutory appeal mechanism to the Public Service Commission and was accordingly dismissed

Reasoning

Section 77(2)(a) and (b) of the County Governments Act empowers the Commission to entertain appeals on decisions relating to remuneration and terms and conditions of service in county governments. Applying the Court of Appeal decision in Secretary, County Public Service Board v Hulbhai Gedi Abdille, the court held that an appeal to the Public Service Commission was the appropriate recourse, and permitting the petition would be falling into error.

p. 4

Legal principles established

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  • Procedural fairness is a flexible, contextual principle whose content depends on the particular function and circumstances of the individual case
  • Where an adequate alternative dispute-resolution forum exists, a party must pursue that forum rather than invoke the court process

Court orders

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  1. 1.The Petition is dismissed with costs
  2. 2.It is so ordered

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 22(2)
  • Constitution of Kenya, 2010Article 258(2)
  • Constitution of Kenya, 2010Article 47
  • County Governments ActSection 77(1)
  • County Governments ActSection 77(2)(a) and (b)

Cases cited (7)

  • Cereal Growers Association & Hugo Wood v County Government of Narok & 11 Others
    [2014] Eklr
  • Republic v National Police Service Exparte Daniel Chacha Chacha
    [2016] eKLR
  • Maxwell Miyawa & 7 Others v Judicial Service Commission
    [2017] eKLR
  • Minister of Health and Another v New Clicks South Africa (Pty) Ltd and Others
    (CCT 59/2004) [2005] ZACC 14; 2006 (2) SA 311 (CC); 2006 (1) BCLR 1 (CC)
  • Secretary, County Public Service Board v Hulbhai Gedi Abdille
    [2017] eKLR
  • James Tinai Murete & Others v County Government of Kajiado & 22 Others
    [2015] eKLR
  • Wilson Mutegi Nyaga & Others v The County Public Service Boar, Kitui County & 2 Others
    [2016] eKLR
Jurisdiction invoked
Constitution of Kenya, 2010 (pettion for enforcement of rights, Articles 22, 47 as invoked by the parties)

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, "Kenya County Government Workers Union v Nyeri County Government & another (Constitutional Petition 4 of 2018) [2019] KEELRC 2619 (KLR)", Case Analysis (2019). Petition dated 14th March 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2619/eng@2019-03-12

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