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ELRCAllowedNot stated in the extract· [2023] KEELRC 2574 (KLR)

Kenya County Government Workers Union v Murang’a County Government & 2 others (Cause E047 of 2022) [2023] KEELRC 2574 (KLR)

Employment and Labour Relations Court
19 October 2023
6,477 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~26 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Kenya County Government Workers Union sued the County Government of Murang'a and the Murang'a County Public Service Board over suitability interviews called by a letter dated 30th November 2022, which targeted only the 267 employees absorbed from the defunct local authorities, including the union's 205 members. The union alleged discrimination on grounds of union membership and former local authority employment, and sought declarations, a quashing order and costs. The respondents denied wrongdoing, contending the tests followed a request by nine employees and were for promotions and pay increases, not terminations, and challenged the union's standing for want of a recognition agreement. The court, Makau J, found the union had standing since a trade union may sue for a member without a recognition agreement. On the evidence, the court found differential treatment amounting to discrimination contrary to Article 27: the respondents invited a retiree and a deceased employee, omitted four of the nine employees who requested the exercise, failed to communicate the purpose of the interviews despite the union's 8th December 2022 inquiry, and never disclosed the criteria used. The employer having failed to discharge its burden under section 5(7) of the Employment Act, the court found violations of fair labour practices and fair administrative action under Articles 41 and 47, and rejected the separation-of-powers objection, holding the court may correct an unfair internal process. The court granted four declarations, quashed the letter of 30th November 2022 and the suitability tests, awarded costs to the claimant, and clarified the respondents may redo the interviews lawfully.

Key legal issues

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01

Locus standi of trade union to sue for members

Holding

The union has standing; no recognition agreement is required.

Reasoning

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.

p. 8
02

Discrimination against members through suitability interviews

Holding

The differential treatment of the former local authority employees, who were targeted alone, amounted to discrimination contrary to Article 27.

Reasoning

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.

p. 10
03

Separation of powers

Holding

The suit does not impermissibly interfere with the Board's mandate.

Reasoning

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.

p. 11
04

Entitlement to relief

Holding

Declarations and quashing order granted against the letter of 30th November 2022.

Reasoning

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.

p. 12

Legal principles established

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  • 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

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  1. 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. 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. 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. 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. 5.An order quashing the letter dated 30th November 2022 and the suitability tests concluded pursuant to it.
  6. 6.Costs of the suit awarded to the claimant to be agreed upon or taxed.
  7. 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

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Practical implications

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Frequently asked questions

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Cite this brief

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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.