County Government Workers Union v Narok County Government & another [2021] KEELRC 1670 (KLR)
The bottom line
#A Kenyan court ruled that Narok County broke the law by cutting an employee's salary without consulting her, awarding KSh 1 million in damages.
What this practically means
#Executive summary
#Key legal issues
#Locus standi of the trade union to sue on behalf of its member
The petitioner had locus, being a registered union with a CBA covering the grievant's employment
The Court found the petitioner annexed proof of registration in the local government sector and that a CBA dated 1.9.2012 applied to officers on permanent establishment, which covered the grievant per her 2014 appointment letter. The contention that there was no proof of membership was therefore rejected.
Exhaustion of internal dispute resolution mechanisms under section 77 of the County Government Act
Non-exhaustion did not bar the petition; the court could excuse it in the interest of justice
The Court accepted that section 77 of the County Government Act provides for appeals to the Public Service Commission, but held the exhaustion requirement applies to judicial review applications under section 9(2) of the Fair Administrative Action Act. Referring the grievant back to internal mechanisms three years later would not be in the interest of justice.
Whether a petition rather than a claim was the appropriate procedure
Filing a petition was appropriate because constitutional breaches were alleged
The Court held the correct test is whether the law adequately covers the remedies sought. Where a constitutional breach is alleged, the Employment Act will not adequately cover the claim, so a petition is appropriate. The respondent's reliance on authorities mandating specific procedures was rejected.
Whether the respondents erred in law by regrading the grievant downwards
Yes - the unilateral regrading and salary reduction without consultation was unlawful
The grievant was promoted to Job Group 'P' with effect from 23/5/2017; in March 2018 the promotion was reversed without consultation, leaving her with a negative net salary. Section 10(5) of the Employment Act requires consultation and written notification of changes, and none occurred. The respondent's claim that it was correcting a grading error did not excuse the failure to consult.
Whether the grievant's constitutional rights were breached
Yes - rights under Articles 41, 28 and 47 were violated
The unilateral salary reduction breached fair remuneration and reasonable working conditions under Article 41(2), infringed human dignity under Article 28, and constituted unfair administrative action without written reasons or a fair hearing under Article 47.
Legal principles established
#- Any change to matters stipulated in an employment contract must be made in consultation with the employee and notified in writing
- A unilateral downward regrading of an employee without consultation breaches the right to fair labour practices under Article 41 of the Constitution
- Where a constitutional breach is alleged, the Employment Act remedies will not adequately cover the claim and filing a petition is appropriate
- The requirement to exhaust internal dispute resolution mechanisms is not cast in stone and the court has residual power to exempt an applicant in the interest of justice
Court orders
#- 1.Declaration that the terms of offer of appointment in the grievant's letter of appointment dated 23rd May, 2017 are the proper and conclusive terms of the employment contract
- 2.Order of injunction restraining the respondents from varying the grievant's terms of service as obtained in the letter of appointment and the Collective Bargaining Agreement
- 3.Mandatory order compelling the respondents to pay the grievant in full the unlawfully varied salary from the date of the respondents' action or omissions
- 4.Declaration that the respondents violated the grievant's rights to fair labour practices under Article 41 of the Constitution and the Employment Act
- 5.Declaration that the respondents' directives to unlawfully vary the grievant's salary were unfair, unlawful and violated her fundamental rights
- 6.Damages of Kshs. 1,000,000 for breach of the grievant's constitutional rights
- 7.Costs of the suit plus interest at court rates from the date of judgment
- Jurisdiction invoked
- Article 162(2) of the Constitution (Employment and Labour Relations Court jurisdiction), invoked via employment and constitutional rights claims under Articles 28, 41 and 47
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "County Government Workers Union v Narok County Government & another [2021] KEELRC 1670 (KLR)", Case Analysis (2021). ELRC Petition No. 2 of 2019 (formerly Nairobi ELRC Petition No. 147 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1670/eng@2021-05-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.