Kenya County Government Workers Union v Murang’a County Government & 2 others (Cause E047 of 2022) [2023] KEELRC 2574 (KLR)
The bottom line
#Murang'a County's suitability interviews were quashed for discriminating against former local authority staff, and the union won without needing a recognition agreement.
What this practically means
#Executive summary
#Key legal issues
#Locus standi of trade union to sue for members
The union has standing; no recognition agreement is required.
The court applied emerging jurisprudence that a trade union need only show that the person on whose behalf the suit is brought is a member. Absence of a recognition agreement with the county government does not oust standing.
Discrimination against members through suitability interviews
The differential treatment of the former local authority employees, who were targeted alone, amounted to discrimination contrary to Article 27.
The invitation omitted four of the nine employees who requested the exercise, included a retiree and a deceased employee, the purpose was not communicated, and no criteria were disclosed. Under section 5(7) of the Employment Act the employer bore the burden of disproof and failed.
Separation of powers
The suit does not impermissibly interfere with the Board's mandate.
The court holds it is clothed with the duty of checks and balances and may intervene where an employer's internal process is unfair or unlawful, to put the process on the right track and balance bargaining power, not to stop it altogether.
Entitlement to relief
Declarations and quashing order granted against the letter of 30th November 2022.
Given the findings of discrimination, unfair labour practice and violation of Articles 41 and 47, the court granted all four declarations and quashed the impugned letter and tests, while leaving the Board free to redo the exercise lawfully.
Legal principles established
#- A trade union may sue on behalf of its members without a recognition agreement, so long as the grievant is a member.
- In discrimination claims, the employer bears the burden of proving that the discrimination did not take place as alleged.
- The court may intervene in an employer's internal process where the procedure adopted is unfair, unlawful or contrary to public policy.
Court orders
#- 1.A Declaration that the Respondents' treatment of the Claimant's members is and was unfair, unlawful and contrary to the Constitution and the Employment Act on rights to fair labour practices.
- 2.A declaration that the Claimant's members are entitled to the same treatment and terms of employment as employees in the same category and their counterparts employed by the devolved governments.
- 3.A declaration that the Claimant's members' fundamental rights and freedoms under Article 41 and 47 of the Constitution have been violated by the Respondents.
- 4.A declaration that the letter dated 30th November 2022 in relation to the Claimant's members is irregular, unlawful and contrary to the law.
- 5.An order quashing the letter dated 30th November 2022 and the suitability tests concluded pursuant to it.
- 6.Costs of the suit awarded to the claimant to be agreed upon or taxed.
- 7.Clarification that the respondents are at liberty to conduct suitability interviews on the claimant's members provided it is done within the four corners of the law.
- Jurisdiction invoked
- Articles 41, 47 and 162(2)(a) of the Constitution (jurisdiction of the ELRC)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya County Government Workers Union v Murang’a County Government & 2 others (Cause E047 of 2022) [2023] KEELRC 2574 (KLR)", Case Analysis (2023). Not stated in the extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2574/eng@2023-10-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.