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ELRCDismissedPetition No. 5 of 2019· [2020] KEELRC 972 (KLR)

Paul Kimeto Cheruiyot v Governor Narok County & 3 others [2020] KEELRC 972 (KLR)

Employment and Labour Relations Court of Kenya at Nakuru
4 June 2020
MMM. Mbaru
6,941 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court dismissed a county worker's salary cut claim because he accepted a new job appointment, and pleaded his constitutional case poorly.

What this practically means

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Executive summary

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The petitioner, formerly a TSC P1 teacher seconded to the Narok County Government in August 2014 and later appointed ECDE Coordinator at job group 'N' effective 20 June 2017, petitioned challenging the reduction of his gross salary from Ksh.86,480 to Ksh.57,250 in March 2018. He sought declarations that the reduction violated Articles 10, 41 and 47 of the Constitution, arrears of Ksh.292,300, restoration of his former salary, an injunction against further diminution of his remuneration, compensation and damages, and costs. The respondents, through a replying affidavit of the Board's CEO, Zipporah Sinyoyia Gad, contended that his initial secondment and grading were irregularly effected by the then County Secretary without the Board's approval; that the Board regularised his grading to job group 'K' to restore parity; that the letter of 14 February 2018 communicated the reasons; and that the petition was premature as the petitioner ought to have appealed to the PSC under section 77 of the County Government Act. The court framed four issues: prematurity, constitutional violations, remedies and costs. It held that section 77(2) is permissive ('may') and that the ELRC's constitutional and statutory jurisdiction over employment disputes cannot be ousted, so the petition was properly before the court. Applying the Anarita Karimi Njeru precision standard, it found no constitutional violation pleaded or proved. On the merits, the petitioner's secondment had lapsed on 19 June 2017 and he accepted a fresh appointment on 22 June 2017, so he could not claim the secondment terms; the salary paid matched the appointment letter. The 4th respondent was entitled to regularise the irregular grading. The petition was dismissed in its entirety with costs to the respondents at 50%.

Key legal issues

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01

Whether the petition was premature for failure to appeal to the PSC under section 77 of the County Government Act

Holding

The petition was not premature; section 77(2) uses 'may' and is non-mandatory, and the court's jurisdiction over employment disputes cannot be ousted.

Reasoning

The court held that Articles 162(2)(a) and (3), 165(5) and (6) and section 12 of the ELRC Act and section 87 of the Employment Act confer original jurisdiction on the court over employment disputes. Constitutional and statutory jurisdiction cannot be removed and conferred on a quasi-judicial body such as the PSC. Parliament's use of 'may' in section 77(2) of the County Government Act makes it permissive, so the petitioner was before the right forum.

p. 6
02

Whether there were constitutional violations of Articles 10, 41 and 47

Holding

No constitutional violation was established; the petition did not plead violations with the precision required by Anarita Karimi Njeru.

Reasoning

Relying on Anarita Karimi Njeru and Mumo Matemo, the court held that a petition must set out with reasonable precision the provision infringed and the manner of infringement. The petitioner merely cited articles without material particulars; a memorandum of claim would have been adequate. Accordingly the court found no constitutional violations.

p. 6
03

Whether the reduction of the petitioner's salary was unlawful under sections 10(5), 13 and 17 of the Employment Act

Holding

The reduction was lawful; the petitioner accepted a fresh appointment on 20 June 2017 upon expiry of his secondment and cannot claim the secondment terms.

Reasoning

The petitioner's secondment from TSC lapsed on 19 June 2017. He was then appointed as ECDE Coordinator JG 'N' by letter dated 20 June 2017 which he accepted by signing on 22 June 2017. This was not continuous employment; parties retained liberty to regulate terms in writing. His consent to the new appointment defeated claims premised on the secondment terms, and nothing was owed beyond the appointment letter's terms.

p. 8
04

Lawfulness of the 4th respondent's regularisation of the petitioner's grading

Holding

The 4th respondent was entitled, under its statutory mandate, to review and regularise erroneous grading done unilaterally by the County Secretary.

Reasoning

The court noted the petitioner was irregularly seconded and graded at job group 'P' by the County Secretary without the 4th respondent's approval, contrary to the Human Resource Manual and schemes of service. Recruiting outside established policy guidelines is unlawful and a court cannot confirm illegal actions; the Board's regularisation restored parity and equity and matched the petitioner's grade to his qualifications and experience.

p. 7

Legal principles established

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  • The ELRC's jurisdiction over employment and labour relations disputes is constitutional and statutory and cannot be removed and conferred on a tribunal; section 77(2) of the County Government Act, being couched in 'may', is non-mandatory.
  • A party seeking redress on a constitutional matter must plead the specific provisions infringed and the manner of infringement with precision (Anarita Karimi Njeru principle).
  • Secondment is a legitimate mode of sourcing employees; a seconded employee remains subject to the terms of the contract with the principal employer and the rules of the placement employer.
  • Recruitment of employees outside established policy guidelines and regulations is unlawful, and an employer is obligated to right such wrongs.

Court orders

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  1. 1.The petition is dismissed in its entirety
  2. 2.The petitioner shall pay the respondents 50% of their costs
Jurisdiction invoked
Article 162(2)(a) and (3) as read with Article 165(5) and (6) of the Constitution; section 12 of the Employment and Labour Relations Court Act, 2011; section 87 of the Employment Act, 2007

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, "Paul Kimeto Cheruiyot v Governor Narok County & 3 others [2020] KEELRC 972 (KLR)", Case Analysis (2020). Petition No. 5 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/972/eng@2020-06-04

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