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ELRCDismissedCause No. 364 of 2017 (formerly Nairobi Cause No. 1113 of 2017)· [2020] KEELRC 1081 (KLR)

Kenya National Union of Nurses v Nakuru Public Service Board [2020] KEELRC 1081 (KLR)

Employment and Labour Relations Court of Kenya at Nakuru
27 April 2020
MMM. Mbaru
3,380 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Employment Court ruled that nurses who finished internships in Nakuru were never employees on permanent terms, so their claim for reinstatement failed.

What this practically means

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Executive summary

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The claimant trade union, holding a recognition agreement dated 14th December 2016 with the respondent county public service board, sued on behalf of eleven nursing officers who were posted to Nakuru hospitals by posting order dated 25th August 2014 without letters of appointment. Seven obtained letters of recommendation for bank loans on the basis of permanent and pensionable employment. In February 2016 they were asked to re-apply and were interviewed, but salaries stopped on 1st March 2016 and they were verbally told to stop working. The claimant alleged a settlement agreement of 5th March 2018 for reinstatement, job group L entry and arrears, breached by the respondent, and sought reinstatement or alternatively declarations, arrears, damages for unfair termination and costs. The respondent denied any employment relationship, contending the grievants were national government interns whose one-year internship ended in 2014, that continued service was unauthorised, and that it had competitively offered eight qualified grievants 3-year renewable contracts in May 2018, with only one accepting. The respondent denied being party to the 5th March 2018 meeting. The court framed two issues: the nature of the relationship and whether remedies should issue. It held the appointment letters expressly stated that internship did not guarantee regular appointment; continued service was never regularised under section 66 of the County Governments Act, which mandates competitive recruitment. The 5th March 2018 agreement was not established. Reinstatement and damages had no foundation. The claim was dismissed in its entirety with each party bearing own costs, judgment delivered electronically on 27th April 2020 under COVID-19 directions.

Key legal issues

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01

Whether the grievants were employees of the respondent on permanent and pensionable terms

Holding

The grievants were interns engaged by the national government for one year; the internship lapsed and continued service was not regularised, so no employment relationship on permanent terms existed

Reasoning

The appointment letter of 12th April 2013 expressly stated that internship did not guarantee regular appointment, which would depend on competitive filling of vacancies. Payment of wages after the internship ended did not regularise the engagement. Section 66 of the County Governments Act required advertisement and competitive recruitment before any public office could be filled, which was not done for the grievants.

02

Whether reinstatement and related remedies should issue

Holding

Reinstatement and payment of back salaries, allowances or damages were refused as there was no foundation for the claim

Reasoning

Reinstatement presupposes an existing employment relationship, which the court found did not exist. The respondent followed competitive recruitment: vacancies were advertised, grievants were interviewed, 8 were offered 3-year renewable contracts, but only one accepted. The respondent had no obligation to retain those who declined or to employ the 3 who failed to qualify.

p. 6

Legal principles established

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  • Employment in a county public service can only be offered after public notification, competitive sourcing and based on need under section 66 of the County Governments Act
  • An intern whose internship term lapses has no legitimate expectation of permanent employment; continued service without regularisation does not create employment

Court orders

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  1. 1.The claim is dismissed in its entirety
  2. 2.Each party shall bear own costs
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Act over employment disputes; claim under sections 5, 41 and 43 of the Employment Act, 2007 and sections 57, 66, 72 and 74 of the County Governments Act

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 National Union of Nurses v Nakuru Public Service Board [2020] KEELRC 1081 (KLR)", Case Analysis (2020). Cause No. 364 of 2017 (formerly Nairobi Cause No. 1113 of 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1081/eng@2020-04-27

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