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ELRCPartially AllowedPetition dated 8th July, 2021 (E&LRC)· [2022] KEELRC 3 (KLR)

Oyatsi v Judicial Service Commission (Petition E111 of 2021) [2022] KEELRC 3 (KLR)

Employment and Labour Relations Court
10 March 2022
MNMathews N. Nduma
9,748 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~39 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court confirmed employers are bound by their own HR manuals, so keeping staff in acting roles beyond policy limits means back-pay and damages.

What this practically means

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Executive summary

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The petitioner, employed by the Judicial Service Commission in 2013 as Regional Assistant Director, Finance, was appointed to act as Director of Finance on 19th February, 2015 and remained in that acting capacity for over six years, earning the Assistant Director's salary plus a modest acting allowance while performing the full duties of the office. She sued claiming violations of articles 27, 28, 30, 35, 41 and 47 of the Constitution, discrimination compared to male colleagues who were promptly confirmed, denial of equal remuneration for equal work, breach of legitimate expectation, and refusal to disclose her interview results from the 2015 and 2019 recruitment exercises, claiming underpayment of Kshs 22,862,848 plus general damages, injunction and certiorari quashing the 2021 re-advertisement. The respondent defended the recruitment as competitive and lawful, relying on paragraph 9(2), Part III, Third Schedule of the Judicial Service Act and privacy concerns regarding interview scores. The court held the respondent bound by section B 20 of its own Human Resource Policies and Procedures Manual, an employment policy under section 5(7)(c) of the Employment Act, limiting acting appointments to 12 months plus a 6-month renewal. It found unfair labour practices, discrimination, violation of legitimate expectation, human dignity, fair administrative action and access to information rights, and dismissed the reliance on the Judicial Service Act. The petition was allowed in substantial part: the petitioner was deemed substantively appointed with effect from 2nd May, 2018; underpayment was awarded at Kshs 3,572,320 per year from that date, computed and filed within 60 days, with interest; certiorari quashed the 29th June, 2021 advertisement; declarations issued under articles 27, 28, 35, 41 and 47; and the petitioner was awarded costs. Broader claims for general damages and backdating to 2015 were not granted.

Key legal issues

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01

Whether the respondent was bound by section B 20 of its Human Resource Policies and Procedures Manual limiting acting appointments to 12 months plus a 6-month renewal

Holding

Yes. The Manual is an employment policy or practice under section 5(7)(c) of the Employment Act, 2007, is impliedly incorporated into contracts of service, and is binding on the employer; the acting appointment provisions are couched in mandatory terms ('must')

Reasoning

The court found the Manual founded on the law and anchored in the Employment Act and the Constitution, and held that the respondent could not cherry-pick what to adhere to. The argument that confirming the petitioner would be ultra vires the Judicial Service Act was rejected; the Manual was developed in discharge of the JSC's mandate under article 172 of the Constitution.

p. 19
02

Whether keeping the petitioner in an acting capacity for over six years violated her constitutional rights

Holding

Yes. It violated her rights to fair labour practices and fair remuneration under article 41(1) and 41(2)(a), equal protection under article 27, human dignity under article 28, access to information under article 35 and fair administrative action under article 47

Reasoning

The respondent retained the petitioner in acting capacity beyond the mandatory 18-month window in its own Manual while she performed the full duties of Director Finance. The court relied on precedent condemning prolonged acting appointments as unfair labour practices and found the treatment amounted to direct discrimination compared to male peers who were confirmed, denying her equal remuneration for work of equal value under section 5(5) of the Employment Act.

p. 21
03

Whether the petitioner had a legitimate expectation of confirmation as Director of Finance

Holding

Yes. By dint of section B 20(iii) and (iv) of the Manual, she had a legitimate expectation of confirmation upon expiry of 18 months, which the respondent failed to honour

Reasoning

The court distinguished the respondent's reliance on the Communication Commission case principles, holding that the expectation arose not from an express promise but from the respondent's own binding policy provisions which mandated either confirmation or reversion after 12 months plus a 6-month renewal. The respondent's failure to take either option breached that expectation.

p. 20
04

Whether the respondent's refusal to provide the interview results and reasons for non-appointment violated article 35

Holding

Yes, in part. The petitioner was entitled to reasons for non-appointment given privately; withholding them violated article 35(1)(b) and article 47

Reasoning

While the court accepted it was not prudent to publish all candidates' individual scores publicly, it held that the petitioner, already an officer with genuine concerns about her conditions of service, was entitled to private written reasons for non-appointment. Denial of that information impaired her ability to exercise and protect her rights and breached article 47 read with the Fair Administrative Action Act.

p. 23
05

Whether paragraph 9(2), Part III, Third Schedule of the Judicial Service Act justified the continued acting appointment

Holding

No. The provision, properly read, supports appointment of a qualified public officer against the establishment rather than indefinite temporary employment, and reliance on it to deny earned remuneration amounted to unfair labour practice

Reasoning

The respondent argued the Judicial Service Act overrode the Manual. The court read the full provision, emphasizing the limb allowing appointment of a public officer held against the establishment of the judicial service, and held the petitioner fit that description. Using the provision merely to keep her on temporary terms while denying substantive remuneration was an unfair labour practice.

p. 20

Legal principles established

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  • An employer is bound by its own Human Resource Policies and Procedures Manual, which is an employment policy or practice under section 5(7)(c) of the Employment Act and is impliedly incorporated into contracts of service
  • Prolonged acting appointments beyond the period prescribed by the employer's own policy constitute unfair labour practices and discrimination entitling equal remuneration for work of equal value
  • An employee denied appointment is entitled to receive privately the reasons for non-appointment notwithstanding privacy concerns over publicising scores

Court orders

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  1. 1.A declaration that the respondent violated the petitioner's rights under Articles 27, 28, 35, 41 and 47 of the Constitution of Kenya, 2010
  2. 2.A declaration that the petitioner is deemed to have been lawfully appointed to the position of Director Finance of the Judiciary upon expiry of eighteen months from the date of appointment in acting capacity on 2nd December, 2016
  3. 3.The respondent is directed to pay the petitioner total underpayment calculated at Kshs 3,572,320 per year from 2nd May, 2018 to-date
  4. 4.Payment of special damages from 2nd May, 2018 to-date is considered sufficient compensation for the violations
  5. 5.An order of certiorari quashing the decision contained in the advertisement for the position of Director Finance in the Standard Newspaper dated 29th June, 2021
  6. 6.The respondent to compute the special damages, serve the petitioner and file with court for confirmation within sixty (60) days of the judgment
  7. 7.Interest at court rates on the underpayment from date of judgment till payment in full
  8. 8.Costs of the suit to the petitioner

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 41
  • Constitution of Kenya, 2010Article 47
  • Constitution of Kenya, 2010Article 3(1)
  • Constitution of Kenya, 2010Article 2(4)
  • Constitution of Kenya, 2010Article 27(1), (2), (3), (4)
  • Constitution of Kenya, 2010Article 28
  • Constitution of Kenya, 2010Article 35
  • Constitution of Kenya, 2010Article 172
  • Constitution of Kenya, 2010Article 232
  • Constitution of Kenya, 2010Article 21(3)(c)
  • Employment Act, 2007Section 5 (including 5(3), 5(5), 5(7)(c))
  • Access to Information Act, No 31 of 2016Sections 4(1)(b), 4(2), 5(1)(a)(iii)
  • Fair Administrative Action Act, No. 4 of 2015Section 6
  • Judicial Service Act, 2011Paragraph 9(2), Part III, Third Schedule

Cases cited (8)

  • Annerita Karimi Njeru v Republic (No 1)
    (1979) eKLR
  • Communication Commission of Kenya and 5 Others v Royal Media Services Limited and 5 Others
    [2014] eKLR
  • Edah Cherono Maiywa v University of Nairobi Enterprises & Services Limited
    Cause No 273 of 2019
  • Heritage Insurance Company Limited v Christopher Onyango & 23 Others
    Civil Appeal No 114 of 2016 [2018] eKLR
  • Kenya Shoe and Leather Workers Union v Slapper Shoe Industries
    [2015] eKLR
  • Silas Kaumbuthu Mbutura v Meru Central Dairy Co-operative Union Limited
    [2015] eKLR
  • Shollei v Judicial Service Commission
    Petition 34 of 2014 [2022] KESC 5 KLR
  • Chase International Investment Corporation and another v Laxman Keshra and others
    [1978] KLR 907
Jurisdiction invoked
Article 41, 47 and related fundamental rights provisions of the Constitution of Kenya, 2010 (petition alleging violation of rights)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Oyatsi v Judicial Service Commission (Petition E111 of 2021) [2022] KEELRC 3 (KLR)", Case Analysis (2022). Petition dated 8th July, 2021 (E&LRC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/3/eng@2022-03-10

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