Kenya County Government Workers Union v County Government of Machakos & another [2020] KEELRC 816 (KLR)

Because of the contested numbers, the Court ordered a joint verification exercise guided by the County Labour Officer, Machakos. The Court rejected the Union's challenge to the report, noting the Union was represented at the exercise. Only 157 Grievants presented documents such as bank statements, work tickets, P9 schedules or identity cards. The Court held it illogical to demand appointment letters when the employer was obliged to issue them, and accepted secondary records as proof of employment.

The Respondents advertised the Grievants' positions on 21 February 2017 and issued a Memorandum on 9 March 2017 directing those who had not applied to stay away from work stations immediately. The Court accepted the Respondents may have wanted to clean ghost workers from their records, but held that such a desire could not displace the duty to afford those already on the payroll an opportunity to be heard. Any ghost workers were on the payroll because of the Respondents' own conduct. The Grievants were entitled to protections under sections 35(1)(c), 40 and 45 of the Employment Act read with Articles 41(1) and 236 of the Constitution.

Section 9(1) of the Employment Act obliges the employer to issue a written contract setting out basic conditions of employment, and section 16(4) and (5) provides for conviction and fine or other remedies for breach. Most if not all of the 157 Grievants lacked the requisite contracts. The obligation to draw the contracts rested on the Respondents, who offered no explanation for the omission, even if the Grievants had been absorbed from defunct local authorities.

The Union came to Court after the contractual relationship had been determined, making most injunctive orders unsuitable. The Grievants were on term contracts and had opted, on undisclosed Union instructions, not to apply for formal employment. The Court therefore awarded the equivalent of one month's salary in lieu of notice - which they should have been given - together with damages of Kshs 50,000 each for the unfair separation and failure to issue written contracts.

Relying on the Privy Council in Harrikisson and the Court of Appeal in Gabriel Mutava, the Court held that the constitutional petition jurisdiction should not be misused as a general substitute for normal procedures. The alleged breaches were capable of proof under the Employment Act, and constitutional questions could have been raised under Rule 7(3) of the ELRC (Procedure) Rules, 2016 within a Statement of Claim. As a deterrent, the Court penalised the Union on costs.

The Respondents contended the Union could not represent their employees absent a recognition agreement. Applying the Court of Appeal's distinction in Modern Soap Factory between a union's right to represent members and the right to collective bargaining anchored on a recognition agreement, the Court held that in the circumstances of this dispute the absence of such an agreement was not a legal handicap to the petition or to the Union's standing.