Mwangi & 11 others v County Government of Nakuru & another (Cause 50 of 2017) [2023] KEELRC 2308 (KLR)
The bottom line
#Kenya's Employment Court ruled that a pay-slip alone doesn't prove you're a county employee, and forged appointment letters create no employment rights at all.
What this practically means
#Executive summary
#Key legal issues
#Whether an employer-employee relationship existed between the 1st Respondent and the Claimants
No employer-employee relationship was created; the appointment letters, deployment letters and pay-slips were forged or fraudulently obtained and are null and void ab initio.
The Claimants failed to prove applications for the jobs, attendance at interviews, acceptance of appointment, performance of work or receipt of salary. Pay-slips were inconsistent with the appointments in designations and names, and Respondents' records showed none of the Claimants was shortlisted, interviewed or recruited. Irregular appointment is unlawful ab initio and cannot be sanitized by compensation.
Whether the Claimants were constructively terminated and are entitled to the reliefs sought
The issue did not arise for determination; all prayers were dismissed.
Having found no employment relationship, there was nothing capable of being terminated constructively or otherwise, and no compensation, reinstatement, notice pay or damages could issue. The court declined to indulge the remaining issues as an exercise in futility.
Burden of proof on the Claimants to establish lawful, procedural recruitment
The Claimants bore and miserably failed to discharge the legal burden of proving they were procedurally, regularly and lawfully recruited.
It was incumbent on the Claimants to prove procedural recruitment by the 2nd Respondent. RW1 testified no vacancies were declared for survey porters or development control assistants, none of the Claimants was interviewed, and no officer named Eric Ogada existed. The documents relied on were shown to be inconsistent and unverifiable.
Legal principles established
#- No person should be employed in the public service without undergoing a competitive recruitment process including an interview.
- A pay-slip alone is not evidence of payment of salary.
- Un-procedural and irregular appointment in public service is unlawful and illegal ab initio.
Court orders
#- 1.A declaration that the Claimants were not and have never been recruited by the 2nd Respondent as employees of or to serve the 1st Respondent
- 2.Dismissal of the entire claims by all the Claimants
- 3.The Respondents awarded costs of the cause
- 4.The Deputy Registrar to cause a copy of the judgment to be served on the chief executive officer of the Council of Governors for information and reflection with a view of prompting Governors to initiate authentic audit and screening of all employees in their respective counties
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment and labour relations causes (Articles 41 and 47 of the Constitution invoked in the claim; Employment Act, Sections 45 and 46)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mwangi & 11 others v County Government of Nakuru & another (Cause 50 of 2017) [2023] KEELRC 2308 (KLR)", Case Analysis (2023). Cause noted as a further amended memorandum of claim dated 5th July, 2021 (ELRC cause, Nakuru). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2308/eng@2023-09-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.