Kenya Union of Clinical Officers & 76 others v County Government of Vihiga (Employment and Labour Relations Cause 32 of 2021) [2023] KEELRC 1343 (KLR)
The bottom line
#The Employment Court voided Vihiga County's termination letters issued without the Public Service Board's authority and ordered unpaid salaries plus costs for the workers.
What this practically means
#Executive summary
#Key legal issues
#Whether the claimants were employees of the respondent
Save for the union and those who had left, the claimants were on the respondent's payroll, working, receiving monthly salaries from September 2021, and their contracts were never terminated
All claimant witnesses admitted working for the respondent; DW1 confirmed they were on the wage bill following Controller of Budget approval, with personal numbers 90% issued. No claimant was dismissed despite the termination letters. The court thus found an employment relationship subsisting and the purported terminations never effected.
Whether the County Secretary's issuance of termination letters usurped the County Public Service Board's powers under section 59 of the County Governments Act
Yes - only the Board may remove county public officers; the termination notices issued by the acting County Secretary were null and void
Section 59 vests exclusive mandate over appointment and removal in the County Public Service Board. The adhoc committee report ought to have been referred to the Board. Applying Macfoy v United Africa Co Ltd, acts done without jurisdiction are nullities. The letters were declared null and void though never effected.
Whether the adhoc committee and verification exercise were illegal
No - the constitution of the adhoc committee and the verification process were justified given the over-recruitment from 149 to 529 officers
Over-recruitment was not in dispute and violated article 10(2)(c) values of good governance, integrity, transparency and accountability. The Board, not the claimants, was at fault; claimants failed to prove they applied for advertised positions. Verification was a reasonable step and the process was overtaken by events after confirmation of the claimants.
Whether the claimants' constitutional rights under Articles 29, 30, 36, 37, 40 and 41 were violated, entitling them to vindicatory damages
No - the claim was not proved to the standard of a constitutional claim; salary arrears with interest were adequate compensation
Relying on Leonard Otieno v Airtel Kenya, constitutional violations must be pleaded with precision and proved with clear evidence. The authorities cited related to actual terminations or suspensions; here no termination was effected and salary delays were explained by budget constraints. No discrimination was proved as in Benson Nguti.
Entitlement to salary arrears
Claimants are entitled to unpaid salary for work done under section 18 of the Employment Act, subject to reconciliation of discrepancies in arrears
There were discrepancies between pleaded schedules and oral testimony (e.g. CW2's 20 months vs 22 months pleaded; CW3's 23 vs 24 months). Rather than quantify unilaterally, the court ordered parties to reconcile arrears within 21 days and file a consent.
Legal principles established
#- The County Public Service Board has exclusive mandate to employ and remove county public service employees under section 59 of the County Governments Act; termination notices issued by the County Secretary without such mandate are nullities
- A null act needs no court order to set it aside - it is automatically void (applying Macfoy v United Africa Co Ltd)
- Constitutional violations must be pleaded with precision and proved with clear evidence; they cannot be established in a factual vacuum (applying Leonard Otieno v Airtel Kenya)
- Employees who have served beyond their probationary period of 6 months are deemed confirmed on permanent and pensionable terms per their appointment terms
- Employees are entitled to unpaid salary for work done under section 18 of the Employment Act
Court orders
#- 1.A declaration that the notice of termination letters issued to the claimants by the acting County Secretary, usurping the powers of the County Public Service Board under section 59 of the County Governments Act, are null and void and of no legal import
- 2.A declaration that the claimants, having served over 6 months, are deemed to have had their terms converted to permanent and pensionable as per terms of appointment
- 3.An order that the parties reconcile outstanding salary arrears within 21 days and file in court a consent on payable salary arrears to each employee
- 4.Costs of the suit awarded to the claimants to be paid by the respondent
- 5.Interest from the date of judgment until payment in full
- 6.Mention on 21st June 2023 to adopt agreement on payable salary arrears
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under section 12 of the Employment and Labour Relations Court Act and Article 23 of the Constitution; reliefs founded on section 59 of the County Governments Act, 2012 and Articles 10, 23, 28, 29, 30, 36, 37, 40 and 41 of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Union of Clinical Officers & 76 others v County Government of Vihiga (Employment and Labour Relations Cause 32 of 2021) [2023] KEELRC 1343 (KLR)", Case Analysis (2023). ELRC Cause (Kakamega) - amended memorandum of claim dated 8th December 2019 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1343/eng@2023-05-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.