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ELRCPartially AllowedPetition filed 1st August 2022· [2023] KEELRC 2716 (KLR)

Nang'ole v Nairobi City Water & Sewerage Company (Petition E138 of 2022) [2023] KEELRC 2716 (KLR)

Employment and Labour Relations Court
1 November 2023
JGJACOB GAKERI
5,441 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled a state corporation wrongly changed an employee's contract terms without consultation, granting him a new five-year contract and owed allowances.

What this practically means

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Executive summary

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The Petitioner, employed by the Respondent state corporation as ICT Director from 1st July 2012, challenged the unilateral introduction of a two-term limit in his employment and the notice of end of employment dated 5th May 2022. He sought restraining orders, compulsory renewal of his contract for a further five years, a permanent stay of the termination notice, injunctions against removal from payroll and denial of office access, damages for discrimination, constitutional violations, pecuniary damages, payment of extraneous allowances of Kshs.3,907,409.60, costs and interest. The Respondent maintained the term limit derived from a Human Resource Manual review approved by the Board on 18th December 2012 and that the 23rd June 2017 renewal was expressly a final term. The court framed four issues: the constitutional petition threshold, unilateral variation of terms, discrimination, and entitlement to reliefs. Applying Anarita Karimi Njeru, it held the petition failed the constitutional threshold, the dispute being essentially statutory employment matters. On the evidence, the Respondent failed to produce authenticated versions of its Human Resource Manual or board resolutions and minutes approving the reviews, or SCAC/PSC approval. The court found the two-term limit was introduced without the consultations and written notification required by Section 10(5) of the Employment Act and that the 2013 contract discharged the earlier one by novation, though its clause 12 did not itself impose a term limit. Discrimination was not proved as the extraneous allowance had been approved for payment. Judgment was entered for the Petitioner in part: the Respondent was restrained from altering his terms unlawfully, directed to accord him a further five-year contract subject to performance appraisal, to pay any outstanding extraneous allowance within 45 days, with the Petitioner awarded 50% of costs. Damages for discrimination, constitutional violation and pecuniary damages were declined.

Key legal issues

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01

Whether the petition met the constitutional petition threshold

Holding

The petition did not meet the threshold; particulars of the alleged violations of Articles 3(1), 10, 41, 47 and 259 were largely missing and the dispute was essentially an employment matter addressable under statute.

Reasoning

Applying Anarita Karimi Njeru, the court found the petitioner had not set out with precision the constitutional provisions infringed and the manner of infringement. The dispute between employer and employee on terms of engagement ought to be litigated under the Employment Act and related statutes to avoid constitutionalising ordinary employment disputes and trivialising the Constitution.

p. 6
02

Whether the Respondent unilaterally varied the Petitioner's employment terms

Holding

The Respondent unilaterally introduced a two-term limit without consultation or notification as required by Section 10(5) of the Employment Act, 2007, and the alleged manual reviews were irregular for want of board approval documentation.

Reasoning

The Respondent failed to avail authenticated versions of the Human Resource Manual, board resolutions or minutes approving the term-limit review, nor SCAC/PSC approval. The memo of 8th June 2020 cited no board resolution. The change was effected by management, not the board, and no consultations with the Petitioner preceded the changes, breaching Section 10(5).

p. 8
03

Whether the Petitioner was discriminated

Holding

No discrimination was proved; the extraneous allowance had been approved for payment by the board on 7th December 2021.

Reasoning

The Petitioner did not establish differential treatment as defined under Section 5(3) of the Employment Act, Black's Law Dictionary and the ILO Discrimination Convention. His appeal against non-payment of the extraneous allowance succeeded, with board approval on 7th December 2021, indicating unresolved interpersonal issues rather than organisational discrimination.

p. 11
04

Effect of the second contract of 13th February 2013

Holding

By signing the 13th February 2013 contract the Petitioner discharged the earlier contract by novation and was bound by the new terms.

Reasoning

Relying on L'Estrange v Graucob, signature prima facie means acceptance. Clause 15 of the contract expressly superseded previous agreements. The phrase 'a further period of five years' in clause 12 did not itself import a final term or term limit; the term limit came from the unproven manual review.

p. 6

Legal principles established

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  • A constitutional petition must identify with precision the constitutional provisions violated and the manner of violation (Anarita Karimi Njeru threshold).
  • Where a matter is addressed by an Act of Parliament it should be litigated under that Act rather than constitutionalised.
  • Any change to a matter stipulated in a contract of service requires consultation with the employee and written notification under Section 10(5) of the Employment Act.

Court orders

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  1. 1.The Respondent is restrained from altering or varying or otherwise changing the terms of the Petitioner's employment otherwise than in accordance with the law.
  2. 2.The Respondent shall accord the Claimant a further 5 year contract effective the date following the lapse of the previous contract and a performance appraisal of the previous contract be conducted for records.
  3. 3.Any Outstanding Extraneous Allowance due to the Petitioner be paid within 45 days.
  4. 4.The Petitioner is awarded 50% of the costs.

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 3(1), 10, 41, 47(1) and (2), 50(1), 155(3)(a), 158(3), 159(2)(d), 234, 234(2)(a), 234(3), 252(1), 259, 48
  • Employment Act, 2007Sections 5(3), 5(3)(b), 10(5)
  • Fair Administrative Action ActSection 4
  • Public Service Commission Act, 2017Sections 3, 43(a), 45, 45(2)(e), 45(4)
  • State Corporations Actnot specified
  • Kenya Defence Forces ActSection 28
  • Civil Procedure ActSection 1B
  • Civil Procedure RulesOrder 21 Rule 1
  • International Labour Organization Discrimination (Employment and Occupation) Convention, 1958not specified

Cases cited (6)

  • Anarita Karimi Njeru V Republic
    (1979) eKLR
  • Trusted Society of Human Rights Alliance V Attorney General & 2 others
    (2012) eKLR
  • Kiambu County Tenants Welfare Association V Attorney General & another
    (2017) eKLR
  • L' Estrange V Graucob
    (1934) 2KB 394
  • Consumer Federation of Kenya (COFEK) suing through officials Stephen Muturo, Ebhraim Kanoke and Henry Ochieng V National Social Security Fund Board of Trustees & 2 others
    (2022) eKLR
  • Manyara Muchui Anthony V Communications Authority of Kenya & 3 others
    (2022) eKLR
Jurisdiction invoked
Articles 3(1), 10, 41, 47 and 259 of the Constitution of Kenya, 2010

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, "Nang'ole v Nairobi City Water & Sewerage Company (Petition E138 of 2022) [2023] KEELRC 2716 (KLR)", Case Analysis (2023). Petition filed 1st August 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2716/eng@2023-11-01

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.