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ELRCAllowedPetition (Notice of Motion dated 12th August 2019)· [2020] KEELRC 1186 (KLR)

Andrew Ochengo Osumo & 3 others v County Government of Nyamira & 6 others [2020] KEELRC 1186 (KLR)

Employment and Labour Relations Court
30 April 2020
MNMathews N. Nduma
1,496 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court ordered Nyamira County to reinstate and pay 160 staff kept working without salaries, ruling the delay unconstitutional.

What this practically means

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Executive summary

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This is a ruling on a notice of motion dated 12th August 2019 in an employment petition by 634 petitioners, Senior Support Staff and Enforcement Officers of the County Government of Nyamira, seeking interim conservatory orders barring the respondents from undertaking disciplinary action without due process, restraining removal from the payroll, and compelling production of documents relating to a skills audit and vetting exercise. The respondents, through a replying affidavit sworn by Bernard M. Osumo, CECM for Public Service Management, explained that a skills audit commenced in April 2019 affecting 874 employees, of whom 406 had been cleared and reinstated, 313 were still being vetted, and the process would conclude in February 2020, with an internal appeal to the Public Service Board available. The sole issue framed was whether the applicants met the threshold for conservatory orders in public service. Applying the Supreme Court's principles in Gatirau Peter Munya v Dickson Mwenda Kithinji, the court found the case's inherent merit augmented by the inordinate delay in keeping public servants in employment without pay for about a year, the failure to conclude the vetting process, and Articles 41 and 48 of the Constitution prohibiting unfair labour practice and guaranteeing fair, expedient administrative action. The respondents' conduct was held oppressive to public servants and contrary to public interest. The court granted conservatory orders in terms of prayers 7, 8 and 10 of the motion, limited to the 160 employees not yet reinstated, directing their reinstatement to the payroll with effect from March 2019 and payment of all arrear remuneration forthwith, with costs in the cause. The ruling was delivered online pursuant to COVID-19 directions, with the parties waiving compliance with Order 21 rule 1 of the Civil Procedure Rules.

Key legal issues

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Whether the threshold for conservatory orders in public service was met

Holding

The threshold was met given the inordinate delay in keeping public servants in employment without pay, failure to conclude the vetting process, and the oppressive conduct of the respondents

Reasoning

Applying the Supreme Court's principles in Gatirau Peter Munya v Dickson Mwenda Kithinji, the court found the inherent merit of the case augmented by the applicants being kept in employment without pay for about a year, the failure to conclude the vetting exercise despite glaring prejudice, and Articles 41 and 48 of the Constitution prohibiting unfair labour practice and guaranteeing fair and expedient administrative action. The respondents' conduct was held to militate against public interest as oppressive to public servants.

p. 2

Legal principles established

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  • Conservatory orders should be granted on the inherent merit of a case bearing in mind the public interest, the constitutional values, and the proportionate magnitudes and priority levels attributable to the relevant causes
  • Keeping an employee in employment without any salaries for an inordinately long period violates Articles 41 and 48 of the Constitution and warrants conservatory orders

Court orders

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  1. 1.Conservatory orders granted in terms of prayers 7, 8 and 10 of the Notice of Motion dated 12th August 2019
  2. 2.Orders relate to the 160 employees not yet reinstated to the payroll of the 1st respondent
  3. 3.All remaining 160 employees reinstated to the payroll with effect from March 2019
  4. 4.Whole arrear remuneration paid to them forthwith
  5. 5.Costs in the cause

Authorities

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Legislation

  • Constitution of KenyaArticle 41
  • Constitution of KenyaArticle 48
  • Constitution of KenyaArticle 159(2)(d)
  • Civil Procedure ActSection 18
  • Civil Procedure RulesOrder 21 rule 1

Cases cited (1)

  • Gatirau Peter Munya vs Dickson Mwenda Kithinji and 2 others
    (2014) eKLR Supreme Court Application No. 5 of 2014
Jurisdiction invoked
Constitution of Kenya, Articles 41, 48 and 159(2)(d)

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, "Andrew Ochengo Osumo & 3 others v County Government of Nyamira & 6 others [2020] KEELRC 1186 (KLR)", Case Analysis (2020). Petition (Notice of Motion dated 12th August 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1186/eng@2020-04-30

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