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ELRCPartially AllowedCause No 35 of 2020· [2023] KEELRC 363 (KLR)

Metto v Uasin Gishu County Public Service Board & 3 others (Cause 35 of 2020) [2023] KEELRC 363 (KLR)

Employment and Labour Relations Court
3 February 2023
3,438 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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A governor's personal staff have jobs that end with the governor's term, though courts can still order counties to pay equal allowances owed to similar public officers.

What this practically means

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Executive summary

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The claimant, an Advocate of the High Court of Kenya, was engaged by the County Government of Uasin Gishu on September 2, 2013 as Legal Advisor to the Governor, a position never advertised and to which he was nominated by the Governor. He claimed unpaid emoluments and declarations that the deduction of his salary and the termination of his employment were unlawful. The respondent maintained that he was personal staff of the Governor on a fixed-term contract coterminous with the Governor's term, that his salary was adjusted and overpayments recovered to align with SRC advisories, and that his tenure lapsed with the Governor's first term. The court framed four issues: the nature of the employment, entitlement to allowances, lawfulness of the salary reduction, and remedies. It held that although the claimant was technically a public officer under article 260 of the Constitution, he was in substance personal staff of the Governor on a contract coterminous with the Governor's elective term; his termination at the end of that term was therefore not unfair. On allowances, the court found that denying him the non-practicing allowance paid to similarly placed legal officers would amount to discrimination under article 232, and awarded Ksh 1,800,000/= (Ksh 30,000/= monthly for five years) as non-practicing allowance, subject to taxes and statutory deductions, while disallowing other allowances not provided for in the contract. The salary reduction and recovery of overpayments were held lawful under article 230(4)(a). Each party was ordered to bear its own costs.

Key legal issues

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01

Status of the claimant's employment - public officer vs personal staff of the Governor

Holding

The claimant was personal staff of the Governor on a contract coterminous with the Governor's elective term; his termination at the end of the term was not unfair.

Reasoning

The position was never advertised as required by section 37 of the Public Service Commission Act and section 66 of the County Government Act; the claimant was nominated by the Governor. Although remunerated from public funds, making him technically a public officer under article 260, permanent and pensionable status must be expressly stated. His contract ended with the Governor's term notwithstanding re-election.

p. 5
02

Entitlement to non-practicing and other allowances

Holding

The claimant was entitled to non-practicing allowance of Ksh 30,000/= per month by analogy with officers of similar rank, but other allowances were disallowed as not contractually provided.

Reasoning

The claimant left private practice to join public service, and denying him allowances paid to similar legal officers (e.g. in Kakamega County) would be discriminatory under article 232. The SRC letter of July 28, 2016 did not suspend payment, it merely awaited review. However, non-conventional allowances must be specifically provided for in the contract, and only house and commuter allowances were.

p. 6
03

Lawfulness of salary reduction and recovery of overpayments

Holding

The reduction and recovery were lawful because they aligned payment with SRC's constitutional mandate under article 230.

Reasoning

The claimant's initial salary was paid outside the formal structure, without a personnel number and not through the IPPD system. Article 230(4)(a) empowers SRC to set and review remuneration of state officers and advise on that of other public officers, so payment through formal channels ensures alignment with SRC advice.

p. 6

Legal principles established

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  • A public officer is only hired on permanent and pensionable terms where the letter of appointment specifically states so; it cannot be assumed.
  • A contract of personal service to a Governor is coterminous with the Governor's elective term and does not survive re-election without a fresh appointment.
  • Denying a public officer allowances payable to officers of similar professional experience and level in public service amounts to discrimination contrary to article 232 of the Constitution.

Court orders

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  1. 1.Award of non-practicing allowance of Ksh 1,800,000/= for the five years the claimant worked for the respondent, subject to taxes and statutory deductions

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 232 (incl. 232(g)), Article 230 (incl. 230(4)(a)), Article 259, Article 260, Schedule IV
  • County Attorney's ActNot specified
  • Interpretation and General Provisions ActSection 3
  • Employment ActNot specified
  • Public Service Commission ActPart VI, section 37
  • County Government ActSection 66
  • Public Service Code of Conduct [2006] as revised (Public Service Commission Human Resource Policy, 2016)Not specified
Jurisdiction invoked
Article 162(2) of the Constitution (ELRC jurisdiction over employment and labour relations), the claim being by a public officer against a County Government

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, "Metto v Uasin Gishu County Public Service Board & 3 others (Cause 35 of 2020) [2023] KEELRC 363 (KLR)", Case Analysis (2023). Cause No 35 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/363/eng@2023-02-03

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