Francis Chamwor P.S. O Muken & 2 others v Speaker Trans-Nzoia County Assembly & 3 others [2020] KEELRC 1922 (KLR)
The bottom line
#A Kenyan court cancelled county assembly staff promotions to permanent terms because the employer skipped open competition and excluded six workers without evidence.
What this practically means
#Executive summary
#Key legal issues
#Unfair labour practice in conversion of contracts to permanent terms
The internal transition from fixed-term contracts to permanent and pensionable terms without an open and competitive process amounted to unfair labour practice.
The initial appointments in October 2015 followed an advertised, shortlisted and interviewed process, but the 2016 conversion to permanent and pensionable terms was done without any advertisement or competitive selection. The respondents produced no evidence of any transitional or promotional interviews. The court held this undermined the constitutional values of competence, merit and fair labour practices.
Discrimination against the six contract employees
Excluding the six employees from permanent terms on unproved allegations of non-performance was discriminatory.
The respondents asserted the six contracts were not renewed on grounds of non-performance but exhibited no appraisal, show-cause letter or warning to substantiate this. In contrast, other employees were converted to permanent terms without a competitive process. The differential treatment, unsupported by evidence, was discriminatory contrary to fair labour practice principles.
Good faith and motive behind the petition
The court noted the petition was filed nearly a year after the appointments and appeared prompted by non-renewal of the six contracts, but the complaints were still justified.
The court observed that no complaint of nepotism or corruption was raised at the time of the initial appointments and that the petition was filed on 4th August 2016, almost a year later, after the six contracts were not renewed. It nevertheless found merit in the complaints about the non-competitive transition and the unproved non-performance allegations.
Legal principles established
#- The transition of employees from fixed-term contracts to permanent and pensionable terms must be done through an open and competitive selection process; failure to do so amounts to unfair labour practice.
- Exclusion of employees from conversion to permanent terms on unproved allegations of non-performance is discriminatory.
Court orders
#- 1.A declaration that the appointment of the 5th to 48th Respondents on 1st July 2016 as employees of the 2nd Respondent on permanent and pensionable terms to the exclusion of the six employees was discriminatory and amounted to unfair labour practice
- 2.An order of certiorari quashing the proceedings and decision of the 4th Respondent's Service Board of 27th June 2016 to employ the 5th to 49th Respondents on permanent and pensionable terms
- Jurisdiction invoked
- Constitution of Kenya, 2010 (alleged violations of Articles 10, 41(1), 73 and 75(1)); Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "Francis Chamwor P.S. O Muken & 2 others v Speaker Trans-Nzoia County Assembly & 3 others [2020] KEELRC 1922 (KLR)", Case Analysis (2020). Petition No 4 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1922/eng@2020-10-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.