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ELRCStruck OutPetition No E123 of 2021· [2022] KEELRC 922 (KLR)

Kenya County Government Workers Union v Nairobi City County Government & another [2022] KEELRC 922 (KLR)

Employment and Labour Relations Court of Kenya
31 January 2022
5,096 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A union's constitutional petition failed because it lacked evidence and used the wrong procedure — choose your forum carefully in Kenya.

What this practically means

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Executive summary

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The Kenya County Government Workers Union, a trade union for employees of Nairobi City County, petitioned the Employment and Labour Relations Court alleging that the Nairobi City County Government and the Nairobi City County Public Service Board violated its members' rights under Articles 27 (non-discrimination), 41 (fair labour practices) and 47 (fair administrative action) by advertising vacancies on 8th July 2021 and recruiting externally without first conducting a staff audit, qualifications assessment, promotions and job placements, and in breach of a Memorandum of Agreement/Return to Work Formula of 5th February 2020. The Petitioner sought declarations, an injunction, prohibition, mandamus and certiorari. The Respondents denied any duty to consult, asserted a staff audit had been carried out, and argued the advertisement excluded no one and that the Petitioner had failed to plead or prove violations with precision. The court framed two issues: whether the constitutional rights were violated, and whether the Petitioner was entitled to the reliefs sought. Applying the three-stage discrimination test from Mohammed Abduba Dida, the court held the advertisement was open to all qualified Kenyans and no discriminatory ground was identified. Allegations of redundancy, breach of legitimate expectation and breach of the Memorandum of Agreement rested on contested questions of fact requiring oral evidence and could not be determined by petition; further, the members had not applied for the advertised positions so any right had not crystallised. Prayers for injunction, prohibition and certiorari were held to be wrongly placed in a petition, and the contract claim belonged in an ordinary claim. The Petition was struck out with no orders as to costs.

Key legal issues

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01

Whether the advertisement of vacancies violated Article 27 (non-discrimination)

Holding

No discrimination established; the advertisement was open to all qualified Kenyans and the Petitioner identified no discriminatory ground

Reasoning

The court applied the three-stage enquiry from Mohammed Abduba Dida. The advertisement on its face was directed to all Kenyans meeting the requirements, with no preference or exclusion. The Petitioner did not identify the specific grounds of discrimination nor any requirement barring its members from applying; the only differentiation was qualifications. The allegation that inviting outside applicants was discriminatory was speculative and unproved.

p. 4
02

Whether the Respondents violated Article 41 (fair labour practices)

Holding

No violation proved; allegations of redundancy and breach of legitimate expectation were speculative and contested issues of fact

Reasoning

Fair labour practices must be construed in light of the Employment Act. The claim of imminent redundancy lacked concrete facts and a staff audit dispute was contested; such factual issues could only be resolved on oral evidence. The Petitioner failed to prove the alleged infringement, and its assertions were speculative.

p. 6
03

Whether the advertisement was unfair administrative action under Article 47

Holding

The advertisement was an administrative action but no unfairness was established; the claims rested on disputed facts not provable by petition

Reasoning

Advertising vacancies was an administrative action under the Fair Administrative Action Act. However, the dispute over staff audit and breach of the Memorandum of Agreement raised questions of fact requiring viva voce evidence and cross-examination. Without that, the alleged violations remained speculative and no constitutional violation was disclosed.

p. 7
04

Whether rights had crystallised

Holding

Members had not applied for the advertised positions, so any right was yet to crystalise

Reasoning

The court noted the members took no definitive step in response to the advertisement, meaning no actual violation had yet occurred; the alleged harm remained prospective and speculative.

p. 7

Legal principles established

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  • The burden of proving infringement of a right lies on the person alleging the violation
  • A petition pleading disputed contractual/factual matters without oral evidence fails to disclose a constitutional violation

Court orders

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  1. 1.The Petition is struck out with no orders as to costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 27, 41, 47, 23(3), 232(1)(i), 159(2)(d), 48
  • Employment and Labour Relations Court ActSection 12(3)
  • Employment Actgeneral
  • Fair Administrative Action ActSection 2
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B

Cases cited (7)

  • Peter Wambugu Kariuki & 16 others vs Kenya Agricultural Research Institute
    (2013) eKLR
  • Geoffrey Mworia vs Water Resources Management Authority & 2 Others
    (2015) eKLR
  • Sumayya Athmani Hassan vs Paul Masinde Simidi & another
    [2019] eKLR
  • Communications Commission of Kenya & others vs Royal Media Services Ltd & 5 others
    (2014) eKLR
  • Mohammed Abduba Dida vs Debate Media Limited & another
    [2018] eKLR
  • Samuel Nduati & 3 others vs Cabinet Secretary Ministry of Health & 9 others
    [2018] eKLR
  • Haki Na Sheria Initiative vs Inspector General of Police & 3 others
    [2020]
Jurisdiction invoked
Article 23(3) of the Constitution and Section 12(3) of the Employment and Labour Relations Court Act (as invoked by the Petitioner)

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 County Government Workers Union v Nairobi City County Government & another [2022] KEELRC 922 (KLR)", Case Analysis (2022). Petition No E123 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/922/eng@2022-01-31

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