Kenya County Governmet Workers Union v Nairobi City County Government & another (Petition E185 of 2021) [2023] KEELRC 58 (KLR)
The bottom line
#A Kenyan court dismissed a union's challenge to county teacher recruitment because the union failed to prove any broken promise, discrimination, or rights violation.
What this practically means
#Executive summary
#Key legal issues
#Breach of legitimate expectation to promotion before new recruitment
No legitimate expectation was proved; there was no express contractual stipulation, proved practice or representation requiring promotion of existing teachers before advertisement of vacancies
The petitioner alleged its members expected promotion before new recruitment, anchored on a CBA and the resolutions of meetings of 13th and 14th October 2021. The court found no CBA produced, the resolutions contained nothing relevant, and in the absence of an objective basis the alleged expectation was not proper, sensible or fair. The petitioner failed to discharge the burden of proof.
Alleged discrimination under article 27 and public service values under article 232(1)(i)
No discrimination proved; the petition contained only a bald assertion with no prohibited ground identified
Discrimination under article 27(4) must be on a listed prohibited ground. The petitioner identified none. The advert was open to the general public and the petitioner did not demonstrate how recruiting new employees would discriminate against its members, nor that new employees would serve on more favourable terms.
Fair labour practices under article 41
The recruitment was need-attracted and served public interest; it was not whimsical, capricious or unreasonable
An unfair labour practice is an act that is whimsical, capricious and unreasonable. The respondents' unrebuted evidence was that the recruitment followed a need assessment and expansion of ECDE centres. The court could not hold such an action unfair. Further, only 40 of the petitioner's members had the relevant qualifications for 219 advertised vacancies.
Fair administrative action under article 47
No adverse effect established entitling members to written reasons; recruitment dictated by organizational need would not render members redundant
The petitioner argued the respondents failed to give reasons and failed to consider that the recruitment would render members redundant. The court found the contention unreasonable since a recruitment spurred by need assessment and bolstering workforce numbers would not create redundancy, and where no adverse effect exists article 47 protection is not engaged.
Legal principles established
#- An employee alleging existence of a legitimate expectation assumes the duty to prove the basis of the expectation and must show an objective basis for its creation
- The test for legitimate expectation is objective and requires assessment of all circumstances of the case
- A party alleging constitutional violation must plead with a reasonable degree of precision the provision infringed and the manner of infringement
- The court will not hesitate to intervene with appropriate remedies where an employer diminishes or threatens to diminish employee protection
Court orders
#- 1.The petition is dismissed with costs
- 2.Each party shall bear its own costs
- Jurisdiction invoked
- Article 23(3) of the Constitution and section 12(3) of the Employment and Labour Relations Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya County Governmet Workers Union v Nairobi City County Government & another (Petition E185 of 2021) [2023] KEELRC 58 (KLR)", Case Analysis (2022). Petition No. E185 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/58/eng@2023-01-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.