Muiruri v County Government of Nyeri (Employment and Labour Relations Cause E007 of 2022) [2023] KEELRC 848 (KLR)
The bottom line
#A Kenyan court stopped Nyeri County from demoting or replacing its engineer without a hearing, saying job status loss can't be fixed with money later.
What this practically means
#Executive summary
#Key legal issues
#Competence of documents filed by Mathenge Mwiti Advocates lacking a 2022 practising certificate
The documents were competent; they were prepared and signed by Mr Oginga, an advocate holding a 2022 practising certificate, and in any event documents are not invalid merely because an advocate lacked a current practising certificate.
The respondent objected that Mr Mathenge Mwiti had no 2022 practising certificate, relying on the Cherack Management case. The court held that per the Supreme Court in National Bank of Kenya v Anaj Warehousing, documents are not invalid for want of a current practising certificate. Further, the impugned documents were signed by Mr Oginga who held a valid certificate, and they were not primary pleadings.
Whether the applicant established a prima facie case
Yes. On the two letters filed, the Board altered his terms from Job Group Q to Job Group M without a hearing, which points to violation of fair administrative action, fair labour practices and natural justice.
Applying the Mrao definition of a prima facie case, the court found the applicant had applied for, been offered, and accepted the Job Group Q position on a 3-year contract and continued performing those duties, yet his salary reverted to Job Group M without a hearing. The schemes of service and advertisement were not produced, but the correspondence established an apparent infringement calling for rebuttal.
Whether irreparable injury would be suffered if the injunction is denied
Yes. While financial loss is compensable, replacement and loss of status as Principal Superintending Engineer may not be adequately compensated by damages.
The court distinguished the financial component of the loss, which is quantifiable, from the non-financial component - replacement and loss of status in Job Group Q - which cannot be adequately compensated by damages. It therefore found the second Nguruman limb satisfied.
Balance of convenience
The balance of convenience tilts in favour of preserving the substratum of the appeal before the PSC, by not interfering with the applicant's Job Group Q appointment.
Even though the court was not in doubt on irreparable harm, it held that preservation of the appeal's substratum - the applicant's appointment as Principal Superintending Engineer Roads not being downgraded to Job Group M or replaced - favoured granting the injunction.
Legal principles established
#- Documents prepared by an advocate are not invalid merely because the advocate did not hold a current practising certificate at the time.
- Altering an employee's terms of service from Job Group Q to Job Group M without according a hearing violates fair administrative action, fair labour practices and natural justice.
- Loss of status as a Principal Superintending Engineer may not be adequately compensated by an award of damages, satisfying the irreparable harm test.
Court orders
#- 1.Orders restraining the Respondent from advertising, interviewing, shortlisting, recruiting and employing anybody in the post of Principal Superintendent Engineer, Engineer road, Job Group Q pending the hearing and final determination of Kenya Public Service Commission Appeal No 5/2022/3276 (Order 2 of the motion).
- 2.Orders restraining the Respondent from replacing, transferring, interdicting, demoting or changing the claimant's employment rank and status of Principal Superintending Engineer to a lower rank or reverting him to the rank of Engineer (1) pending the appeal (Order 3 of the motion).
- 3.Costs of the application awarded to the applicant plus interest.
- Jurisdiction invoked
- Section 77 of the County Government Act and Sections 1, 1A & B and 3A of the Civil Procedure Act; Section 12(3)(1) of the ELRC Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Muiruri v County Government of Nyeri (Employment and Labour Relations Cause E007 of 2022) [2023] KEELRC 848 (KLR)", Case Analysis (2023). Not stated in the judgment (Notice of Motion dated May 30, 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/848/eng@2023-04-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.