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ELRCDismissedPetition No. E185 of 2021· [2023] KEELRC 58 (KLR)

Kenya County Governmet Workers Union v Nairobi City County Government & another (Petition E185 of 2021) [2023] KEELRC 58 (KLR)

Employment and Labour Relations Court
20 January 2022
5,366 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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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

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Executive summary

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The Kenya County Government Workers Union petitioned the ELRC on behalf of its members employed as ECDE teachers by Nairobi City County, challenging the 2nd respondent's advertisement of 219 vacancies for ECDE Teacher IV (Job Group H) on October 4, 2021. The petitioner sought declarations of violation of articles 27, 41 and 47, injunction, prohibition, mandamus and certiorari, contending that existing qualified teachers had a legitimate expectation of promotion before new recruitment, and that the advertisements breached a return to work formula signed on October 14, 2021. The respondents, whose reply to an interlocutory application was deemed their response, argued the recruitment followed a need assessment and expansion of ECDE centres, was not meant to displace or render members redundant, and that no discrimination or breach of the return to work formula was proved. The court, proceeding on three distilled issues, held that no legitimate expectation was established: the petitioner produced no collective bargaining agreement and the meeting resolutions contained nothing relevant, so there was no objective basis for the alleged expectation. No discrimination under article 27 was proved, as no prohibited ground was identified and the advert was open to the public; the recruitment was need-attracted and served public interest, so it was not an unfair labour practice under article 41; and since the recruitment would not create redundancy, article 47 was not engaged. Finding no violation of any cited right, the court dismissed the petition, ordering each party to bear its own costs.

Key legal issues

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01

Breach of legitimate expectation to promotion before new recruitment

Holding

No legitimate expectation was proved; there was no express contractual stipulation, proved practice or representation requiring promotion of existing teachers before advertisement of vacancies

Reasoning

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.

p. 8
02

Alleged discrimination under article 27 and public service values under article 232(1)(i)

Holding

No discrimination proved; the petition contained only a bald assertion with no prohibited ground identified

Reasoning

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.

p. 9
03

Fair labour practices under article 41

Holding

The recruitment was need-attracted and served public interest; it was not whimsical, capricious or unreasonable

Reasoning

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.

p. 9
04

Fair administrative action under article 47

Holding

No adverse effect established entitling members to written reasons; recruitment dictated by organizational need would not render members redundant

Reasoning

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.

p. 10

Legal principles established

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  • 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

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  1. 1.The petition is dismissed with costs
  2. 2.Each party shall bear its own costs

Authorities

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Legislation

  • Constitution of Kenya, 2010articles 23(3), 27, 27(4), 41, 47(1)-(3), 48, 159(2)(d), 232(1)(i)
  • Employment and Labour Relations Court Actsection 12(3)
  • Labour Relations Act
  • Fair Administrative Actions Act
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B

Cases cited (11)

  • Peter Wambugu Kariuki & 16 others v Kenya Agricultural Research Institute
    (2013) eKLR
  • Geoffrey Mworia v Water Resources Management Authority & 2 others
    (2015) eKLR
  • Republic v CEO, Youth Enterprise Development Fund & another ex-parte Entone Wasonga
    [2018] eKLR
  • Kenya Breweries Ltd & another v Washington O. Okeyo
    [2002] eKLR
  • Mohammed Abduba Dida v Debate Media Limited & another
    [2018] eKLR
  • Haki Na Sheria Initiative v Inspector General of Police & 3 others
    [2020]
  • Communications Commission of Kenya and Five others v Royal Media Services Ltd
    [2014] eKLR
  • Dr. Naim Bilal Yaseen v Cabinet Secretary, Ministry of ICT, Innovations and Youth Affairs and 2 others
    Petition No. E119 of 2022
  • Deirks v University of South Africa
    [1999] 20 ILT 1227
  • Anerita Karimi Njeru v Attorney General
    [1979] eKLR
  • Julius Meme v Republic
    [2004] eKLR
Jurisdiction invoked
Article 23(3) of the Constitution and section 12(3) of the Employment and Labour Relations Court Act

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 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.