Njue & 2 others v County Service Board Kirinyaga & another (Employment and Labour Relations Petition E003, E004 & E005 of 2020 (Consolidated)) [2023] KEELRC 1638 (KLR)
The bottom line
#Nyeri county workers demoted without their consent or a hearing won back pay and damages after the court ruled the re-designation unlawful.
What this practically means
#Executive summary
#Key legal issues
#Lawfulness of the re-designation
The re-designation was unlawful, a demotion in disguise and a breach of the employment contracts
Section 2 of the County Government Act defines re-designation as horizontal movement to a position of equal grade; section 69 prohibits re-designation without the officer's consent and any reduction in remuneration. The letters dated 28 March 2019 demoted the petitioners from Job Group G to E, reduced their pay and were issued without consent, offending both the statute and section 10(5) of the Employment Act.
Violation of constitutional rights through lack of fair administrative action
The failure to give prior notice, reasons and a hearing violated Articles 28, 41 and 47 and section 4 of the Fair Administrative Action Act
Re-designation adversely affecting legal rights is administrative action requiring procedural fairness. The requirement of consent under section 69 presupposes consultation and representation. Failure to comply amounted to violation of dignity, fair labour practices and fair administrative action.
Alleged lack of qualifications and recovery of medical allowance
The qualification objection was an afterthought; and no unlawful deductions were proved
The respondents did not produce the 2009 scheme of service as evidence, and the petitioners had been appointed in 2014 despite the alleged minimum qualifications. Pay slips showed no deductions to recover the medical allowance, and the respondents waived recovery on humanitarian grounds.
Legal principles established
#- A re-designation that demotes an officer to a lower grade, is done without the officer's consent, or results in reduction of remuneration, offends sections 2 and 69 of the County Government Act and is unlawful
- An employer's unilateral variation of fundamental terms of employment without consultation and hearing violates the right to fair labour practices and fair administrative action
Court orders
#- 1.The re-designation of the petitioners from the position of Medical Social Worker Job Group G to Supervisor Support Staff Job Group E is declared unconstitutional, null and void
- 2.Each petitioner is awarded Kshs.1,912,000.00 less statutory deductions
- 3.The petitioners are further awarded costs plus interest at court rates from the date of this judgment
- Jurisdiction invoked
- Constitutional petition under Articles 28, 30, 40, 41, 47 and 50 of the Constitution (employment and labour relations jurisdiction of the ELRC)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Njue & 2 others v County Service Board Kirinyaga & another (Employment and Labour Relations Petition E003, E004 & E005 of 2020 (Consolidated)) [2023] KEELRC 1638 (KLR)", Case Analysis (2023). Consolidated petitions (consolidated on 23rd March 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1638/eng@2023-07-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.