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ELRCPartially AllowedPetition 38 of 2019· [2020] KEELRC 1848 (KLR)

Kenya County Government Workers Union v Wajir County Government & another [2020] KEELRC 1848 (KLR)

Employment and Labour Relations Court
16 January 2020
HWHellen S. Wasilwa
2,108 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Wajir County could not cut its workers' salaries without consulting them first, and must repay everything withheld since 2015 with interest.

What this practically means

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Executive summary

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The Kenya County Government Workers Union petitioned the ELRC at Nairobi on behalf of its members employed by Wajir County Government and the Wajir County Assembly Service Board, challenging the downward review of their salaries between 2015 and 2016. It sought declarations that the pre-January 2015 letters of appointment were conclusive of the contractual terms, injunctions restraining variation of terms, a mandatory order for payment of the withheld salary differences from January 2015, declarations of violation of Articles 41 and related constitutional provisions, and damages and costs. The Respondents opposed, asserting the members were consulted, that the harmonisation aligned job groups with the wider Wajir County Public Service, that the union had not proved membership of the claimants, and that prayers (b) and (c) were overtaken by events and prayer (d) contrary to public policy. The Petition proceeded on written submissions, only the Petitioner filing. Justice Wasilwa found the Respondents had not denied the salary reduction but failed to demonstrate any consultation: no invitation letters or individual notices existed. Relying on Ronald Kampa Lugaba v Kenol Kobil, Jackline Wakesho v Aroma Cafe and Maxwell Miyawa v JSC, the court held the unilateral variation without consultation offended Section 10(5) of the Employment Act, amounted to constructive dismissal and an unfair labour practice, and breached Articles 41 and 27 of the Constitution. All declaratory, injunctive and mandatory prayers were granted, with costs and interest on the withheld salaries.

Key legal issues

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01

Unilateral variation of employment terms

Holding

The Respondents' unilateral reduction of salaries without consultation was unfair, unjustified and an unfair labour practice, amounting to constructive dismissal under Section 10(5) of the Employment Act and a breach of Article 41 of the Constitution

Reasoning

The Respondents did not deny reducing the salaries but claimed consultation. They failed to demonstrate any consultation: no letters inviting the union or members to meetings and no individual letters informing members of the reduction. Following Ronald Kampa Lugaba v Kenol Kobil and related authorities, a unilateral variation of an essential term such as remuneration is repudiation and violates fair labour practices.

p. 3
02

Violation of the right to equality under Article 27

Holding

The Respondents also violated Article 27(1) and (2) of the Constitution by their actions against the members

Reasoning

The court found that the unequal treatment inherent in the unilateral salary reduction breached the members' right to equal protection and equal benefit of the law, alongside the breach of Article 41 on fair labour practices and Article 10 on national values.

p. 3

Legal principles established

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  • A unilateral variation of an employment contract without consultation is unlawful, amounts to repudiation or breach of contract and constitutes an unfair labour practice

Court orders

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  1. 1.A declaration that the terms of the offer of appointment contained in the Petitioner's members' letters of appointment and/or terms of engagement before January 2015 are the proper and conclusive terms of the employment contract
  2. 2.An order of injunction restraining the Respondents from varying the members' terms of service as confirmed in their employment
  3. 3.A permanent injunction restraining the Respondents from varying or altering the members' terms of employment to their detriment without due process
  4. 4.A mandatory order compelling the Respondents to pay the Petitioner's members in full the unlawfully varied salaries from January 2015 to date
  5. 5.A declaration that the Respondents violated the members' rights to fair labour practices under Article 41 of the Constitution and the Employment Act
  6. 6.A declaration that the Respondents' directive to vary the members' salaries is unfair, unlawful and unconstitutional
  7. 7.The Respondents to pay costs of the Petition plus interest on the withheld salaries

Authorities

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Legislation

  • Constitution of KenyaArticles 10, 27, 41, 43, 47, 232
  • Employment Act 2007Sections 10(5), 17 and 26

Cases cited (9)

  • Ronald Kampa Lugaba vs. Kenol Kobil Limited
    [2016] eKLR
  • Jackline Wakesho vs. Aroma Cafe
    [2014] eKLR
  • Maxwell Miyawa & 7 Others vs. JSC
    [2017] eKLR
  • Alice Mbithe Mwanzia vs. Express It Courier Limited
    [2016] eKLR
  • Hoggs vs. Dover College
    [1990] ICR 39
  • Alram Extrusions vs. Yates & Others
    [2996] IRLR 327
  • Charles Thuo Muguku vs. K-Unity Savings & Credit Co-operative Society Limited
    [2016] eKLR
  • James Ang'awa Atanda & 10 Others vs. Judicial Service Commission
    [2017] eKLR
  • Cecilia Karuru Ngayu vs. Barclays Bank of Kenya & Another
    [2016] eKLR
Jurisdiction invoked
Articles 41, 47 and 232 of the Constitution of Kenya (employment and labour relations jurisdiction of the ELRC)

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 Wajir County Government & another [2020] KEELRC 1848 (KLR)", Case Analysis (2020). Petition 38 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1848/eng@2020-01-16

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