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ELRCPartially AllowedELRC Petition No. 2 of 2019 (formerly Nairobi ELRC Petition No. 147 of 2018)· [2021] KEELRC 1670 (KLR)

County Government Workers Union v Narok County Government & another [2021] KEELRC 1670 (KLR)

Employment and Labour Relations Court of Kenya
20 May 2021
4,195 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The County Government Workers Union petitioned on behalf of its member, Emily Naanyu Sena, an administrative officer employed by Narok County Government. She was promoted to Assistant Director, Counselling Services, Job Group 'P', by letter dated 23rd May 2017, but in February/March 2018 discovered her salary had been unilaterally reduced to Kshs. 55,410/- (net negative Kshs. 7,160.55) with her job group reverted to 'K', without consultation. The union sought declarations, injunctions, payment of the unlawfully varied salary, damages and costs. The respondents argued the union lacked locus standi, the petition was premature for failure to exhaust the appeal mechanism to the Public Service Commission under section 77 of the County Government Act, a simple claim rather than a petition should have been filed, and the regrading was a legitimate correction of an erroneous grading. Justice Hellen Wasilwa framed six issues and resolved all against the respondents. The union, as a registered union with a CBA covering the grievant, had locus. The exhaustion requirement under section 9 of the Fair Administrative Action Act did not bar a petition, and referring the grievant back three years later would not serve the interests of justice. A petition was proper since constitutional breaches were alleged. The Court found the unilateral regrading contravened section 10(5) of the Employment Act, which requires consultation and written notification, and violated the grievant's rights to fair labour practices, dignity and fair administrative action under Articles 41, 28 and 47. The petition was allowed in full: declarations issued, injunction and mandatory order granted, Kshs. 1 million in damages awarded, with costs plus interest.

Key legal issues

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01

Locus standi of the trade union to sue on behalf of its member

Holding

The petitioner had locus, being a registered union with a CBA covering the grievant's employment

Reasoning

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.

p. 4
02

Exhaustion of internal dispute resolution mechanisms under section 77 of the County Government Act

Holding

Non-exhaustion did not bar the petition; the court could excuse it in the interest of justice

Reasoning

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.

p. 5
03

Whether a petition rather than a claim was the appropriate procedure

Holding

Filing a petition was appropriate because constitutional breaches were alleged

Reasoning

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.

p. 5
04

Whether the respondents erred in law by regrading the grievant downwards

Holding

Yes - the unilateral regrading and salary reduction without consultation was unlawful

Reasoning

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.

p. 5
05

Whether the grievant's constitutional rights were breached

Holding

Yes - rights under Articles 41, 28 and 47 were violated

Reasoning

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.

p. 6

Legal principles established

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  • 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

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  1. 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. 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. 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. 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. 5.Declaration that the respondents' directives to unlawfully vary the grievant's salary were unfair, unlawful and violated her fundamental rights
  6. 6.Damages of Kshs. 1,000,000 for breach of the grievant's constitutional rights
  7. 7.Costs of the suit plus interest at court rates from the date of judgment

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 10(2)(b), 27, 28, 41(1),(2)(a), 47, 232
  • Employment Act, 2007Sections 5(2), 10(1),(5), 17, 26
  • Labour Relations Actnot specified
  • County Government ActSections 59(4)(f), 60(1)(d) and (e), 63(2)(c), 77(1),(2),(5)
  • Fair Administrative Action ActSection 9(2) and (4)
  • Human Resource Policies and Procedures Manual for the Public Service, 2016Sections K.10 and K.11

Cases cited (12)

  • Maxwell Miyawa & 7 others v Judicial Service Commission [2017] eKLR
    [2017] eKLR
  • Jackson K. Berege v Maasai Mara University [2015] eKLR
    [2015] eKLR
  • Nyangau Erick Nyakundi v Secretary Teacher Service Commission [2016] eKLR
    [2016] eKLR
  • Kenya County Government Workers Union v Wajir County Government and Another [2020] eKLR
    [2020] eKLR
  • Law Society of Kenya v Commissioner of Lands & 2 others [2001] eKLR
    [2001] eKLR
  • Geoffrey Mareko v National General Secretary Dock Workers Union & 2 others [2015] eKLR
    [2015] eKLR
  • Speaker of National Assembly v James Njenga Karume [1992] eKLR
    [1992] eKLR
  • Alice Mweru Ngai v Kenya Power and Lighting Co. Ltd [2015] eKLR
    [2015] eKLR
  • Secretary, County Public Service Board & Another v Hulbhai Gedi Abdille [2017] eKLR
    [2017] eKLR
  • James Akelerio Alias Muguu & Another v Moses Kasaine Lenolkilal & 3 Others [2014] eKLR
    [2014] eKLR
  • Nicholas Muturi Okemwa & 8 others v Judicial Service Commission [2016] eKLR
    [2016] eKLR
  • Trusted Society of Human Rights Alliance v Nakuru Water and Sanitation Services Company & Another [2013] eKLR
    [2013] eKLR
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

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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, "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.