Kenya County Government Workers Union v County Government of Nyeri & another [2022] KEELRC 548 (KLR)

Employment and Labour Relations Court

9 March 2022

DMD.K. Njagi Marete

797 words in judgment

View original judgment Read on Kenya Law Watch case

AI-assisted case brief

·~3 min to read original · ~4 min brief

The bottom line

What this practically means

Executive summary

This Employment and Labour Relations Court decision at Nyeri, delivered by D.K. Njagi Marete J on 9 March 2022, determined a preliminary objection dated 23 November 2020 raised by the Respondent. The objection contended that the court lacked jurisdiction over the Claimant's claim because the Claimant had not first appealed to the Public Service Commission under Section 77 of the County Governments Act, 2012, and that the claim was consequently misconceived and incompetent. The Claimant, described in submissions as the Ex-parte Applicant represented through her union, opposed the objection and sought its dismissal with costs. The court accepted that Section 77 provides a first window for recourse in employment matters and that the central dispute — conversion of the Respondent's employees from casual employment to terms consistent with the Employment Act — falls within the Commission's purview, citing the Court of Appeal decisions in Secretary, County Public Service Board & another v Hulbhai Gedi Abdille and Daniel N. Mugendi v Kenyatta University. However, the court held that Section 77 is not couched in mandatory terms and that its application depends on the subject matter. Because the issues involved a test of constitutionality and the fundamental rights of the Applicant, applying Section 77 would cause hardship and injure those rights, and could facilitate a subsequent judicial review application. The court found a case of non-application of Section 77 and dismissed the preliminary objection with costs to the Respondents.

Key legal issues

Whether Section 77 of the County Governments Act ousts the court's jurisdiction where fundamental rights are at stake

Holding

Section 77 is not mandatory and does not bar the claim because the issues test constitutionality and fundamental rights; the preliminary objection fails

Reasoning

The court accepted that Section 77 is a first window for recourse in employment matters and that conversion of casual employees falls within the Commission's purview, citing Hulbhai Gedi Abdille and Mugendi. However, it held that Section 77 is not couched in mandatory terms and its application depends on the subject matter. Because the matter engages fundamental rights and a potential judicial review application, applying Section 77 would cause hardship and injure the Applicant's basic rights. The objection was therefore dismissed with costs.

p. 2

Whether conversion of employees from casual to permanent terms falls within the Public Service Commission's purview

Holding

The court accepted, on the authority of Hulbhai Gedi Abdille, that this subject matter falls within the Commission's purview

Reasoning

The court acknowledged that the main issue — conversion of the Respondent's employees from casual to terms consistent with the Employment Act — falls within the preview of the Commission, and cited the Court of Appeal decision in Secretary, County Public Service Board & another v Hulbhai Gedi Abdille as guidance. Despite this, the non-mandatory character of Section 77 and the constitutional/fundamental rights dimension meant the statutory appeal route was not a bar in this case.

p. 1

Legal principles established

Section 77 of the County Governments Act is not mandatory in terms and its application depends on the subject matter, particularly where fundamental rights are engaged
Where disputes involve questions of constitutionality and fundamental rights, a party need not first exhaust the statutory appellate route under Section 77

Court orders

1.The preliminary objection dated 23rd November 2020 is dismissed
2.Costs of the application to the Respondents

Authorities

Legislation

County Governments ActSection 77
Employment ActNot specified

Cases cited (4)

Secretary, County Public Service Board & another v Hulbhai Gedi Abdille
(2017) eKLR Civil Appeal Number 202 of 2015
Daniel N. Mugendi v Kenyatta University & 3 others
(2013) eKLR
Alphonse Mwangemi Munga & Others vs African Safari Club Ltd
(2008) eKLR
Republic v National Environment Management Authority
(supra) - not stated

Jurisdiction invoked: Jurisdiction of the Employment and Labour Relations Court considered in light of Section 77 of the County Governments Act, 2012

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Kenya County Government Workers Union v County Government of Nyeri & another [2022] KEELRC 548 (KLR)", Case Analysis (2022). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/548/eng@2022-03-09

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