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ELRCDismissedCause as filed on 27 August 2020 against the 12 County Public Service Boards (number not stated in judgment)· [2021] KEELRC 479 (KLR)

Kenya National Union of Nurses v Kisumu County Public Service Board & 11 others [2021] KEELRC 479 (KLR)

Employment and Labour Relations Court
17 November 2021
RSRadido Stephen
1,669 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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The Employment Court dismissed the nurses' union's case because it should first have taken the dispute to the Public Service Commission, not straight to court.

What this practically means

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Executive summary

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The Kenya National Union of Nurses sued the 12 County Public Service Boards alleging unfair labour practices: nurses were engaged on short-term contracts on less remuneration than permanent and pensionable nurses, and contract nurses were denied a COVID-19 allowance, contrary to Article 41 of the Constitution, the Employment Act and public service policy manuals. The Union sought declarations, conversion of contract nurses to permanent and pensionable terms, payment of salary and allowance arrears, and costs. When parties appeared for directions, the Court directed them to address a jurisdictional question anchored on section 77 of the County Governments Act and section 87 of the Public Service Commission Act. The Court held that Article 234(2)(i) of the Constitution, read with those provisions, confers on the Public Service Commission first-instance jurisdiction over disputes on engagement, remuneration and terms and conditions of service in county government public service, and section 87(2) outlaws court proceedings before that appellate procedure is exhausted. The Union, which was challenging terms and conditions of service, did not demonstrate that it had utilised that avenue. Applying the exhaustion jurisprudence in Hulbhai Gedi Abdille, Njenga Karume and Muthinja, the Court declined jurisdiction. On the merits, it observed that the Employment Act recognises contracts of definite and indefinite duration; fixed-term contracts are not unlawful or discriminatory per se absent breach of statutory minimums, and the Union had identified none. The Court also censured the Union's multiplicity of suits on the same subject matter in different courts. The Cause was dismissed with costs to the 2nd and 7th Respondents.

Key legal issues

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01

Exhaustion of alternative dispute resolution mechanisms before moving the Court

Holding

The Cause was barred because the Union should first have appealed to the Public Service Commission under section 87(2) of the Public Service Commission Act, and it did not demonstrate it had done so.

Reasoning

Article 234(2)(i) of the Constitution, read with section 77 of the County Governments Act and sections 85, 86 and 87 of the Public Service Commission Act, confers on the Public Service Commission first-instance jurisdiction over disputes on engagement, remuneration and terms and conditions of service in county governments. Section 87(2) expressly outlaws filing court proceedings before the appellate procedure is exhausted. The Union's complaint concerned terms and conditions of service, yet it never demonstrated use of that avenue. The Court of Appeal in Hulbhai Gedi Abdille and other authorities require such mechanisms to be utilised first.

p. 3
02

Whether fixed-term contracts for nurses constitute unfair labour practices or discrimination

Holding

On the merits, nothing prima facie unlawful exists in fixed-term contracts; the Employment Act recognises contracts of definite and indefinite duration and party autonomy governs the choice, subject only to statutory minimums.

Reasoning

The Employment Act, 2007 recognises contracts of definite and indefinite duration, and party autonomy allows parties to agree on the contract type fitting their circumstances. A contract is not unlawful or discriminatory merely because of its duration. However, it must incorporate statutory minimums such as minimum wage, annual leave and housing entitlement. The Union failed to identify any term of the nurses' contracts that fell below the prescribed minimums, so the claim would in any event fail on the merits.

p. 3

Legal principles established

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  • The Public Service Commission has first-instance/appellate jurisdiction over disputes concerning terms and conditions of service in county governments, and court proceedings filed before exhausting that procedure are barred
  • Fixed-term contracts are not per se unlawful or discriminatory; a contract is only unlawful if it falls below statutory minimums

Court orders

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  1. 1.The Court declines jurisdiction over the Cause
  2. 2.The Cause is dismissed with costs to the 2nd and 7th Respondents

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 41
  • Constitution of Kenya, 2010Article 234(2)(i)
  • Employment Act, 2007sections 5(2) and (3), 26 and 37
  • Public Service Commission Act, 2017sections 85, 86 and 87
  • County Governments Actsection 77
  • Public Service Policy ManualPart II, Sections 16 and 17
  • Human Resource Policy Manual for the Public Servicesection C.2(1)

Cases cited (6)

  • Abdikadir Suleiman v County Government of Isiolo & Anor
    (2015) eKLR
  • Thuranira Salesio Mutuma v County Public Service Board & 2 Ors
    (2019) eKLR
  • County Assembly of Embu v Embu County Public Service Board
    (2021) eKLR
  • Secretary, County Public Service Board and Anor v Hulbhan Gedi Abdille
    (2017) eKLR
  • Speaker of the National Assembly v Njenga Karume
    (2008) 1 KLR 425
  • Geoffrey Muthinja & Anor v Samuel Muguna Henry & 1756 Ors
    (2015) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction; challenged under Article 234(2)(i) of the Constitution, section 77 of the County Governments Act and sections 85, 86 and 87 of the Public Service Commission Act, 2017

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 Kisumu County Public Service Board & 11 others [2021] KEELRC 479 (KLR)", Case Analysis (2021). Cause as filed on 27 August 2020 against the 12 County Public Service Boards (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/479/eng@2021-11-17

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