Kenya Medical Practitioners Pharmacists and Dentists Union & another v Salaries and Remuneration Commission & 4 others; 47 County Government Public Service Boards & 56 others (Interested Parties) (Employment and Labour Relations Petition E006 of 2023 & Petition 048 of 2023 (Consolidated)) [2023] KEELRC 2964 (KLR)
The bottom line
#Kenya's Employment Court ruled the Salaries and Remuneration Commission cannot abolish the doctors' Non-Practice Allowance because that power belongs to employers and unions through collective bargaining.
What this practically means
#Executive summary
#Key legal issues
#Justiciability of a challenge to a proposal still at public participation stage
The dispute was justiciable because it raised the constitutional question of whether the SRC had power to propose abolishing the allowance.
The SRC argued the petitions were premature and speculative since the impugned letter merely invited views. The court held that the petitions called on it to determine the constitutional extent of SRC's mandate over Non-Practice Allowance, a question that had crystallised regardless of the ongoing participation process. Justiciability requires a matter capable of court adjudication; here the ultra vires question was already live.
Whether the SRC overstepped its mandate in proposing to abolish Non-Practice Allowance
Yes. The proposal amounted to setting terms and conditions of service, exceeding the SRC's advisory role under article 230(4)(b) and encroaching on PSC powers under article 234(2)(g).
Remuneration is a key term of service negotiated between employers and recognised trade unions under article 41(5) and ILO Convention 98. The SRC comes in only as an advisor once terms are set. By proposing abolition of an existing negotiated benefit, the SRC was an active player rather than advisor, contrary to the collective bargaining framework, and the Supreme Court's Muthuuri decision confirms conditions of service review rests with bodies like the PSC.
Legal principles established
#- Remuneration is a key term of service and the preserve of the employer, negotiated through collective bargaining; the SRC may only advise once terms have been set.
- In proposing to abolish Non-Practice Allowance, the SRC set a term of service for public officers, thereby acting outside its advisory mandate under article 230(4) and usurping the PSC's role under article 234(2)(g).
- Accrued employee benefits should not be unfavourably reduced or removed.
Court orders
#- 1.An order of certiorari to bring into the court for purposes of quashing the 1st respondent's (SRC) circular No. SRC/TS/15 Vol II (1), dated November 25, 2022, to the extent of its reference to Non-practice Allowance
- 2.An order of prohibition prohibiting the 1st respondent (SRC) from enforcing the said circular No SRC/TS/15 Vol II (1), dated November 25, 2022, to the extent of its reference to Non-practice Allowance
- 3.A declaration that the circular No SRC/TS/15 Vol. II (1), dated November 25, 2022, on the proposal to abolish Non-practice Allowance conflicts with articles 41 and 234(2)(g) of the Constitution and is thus unconstitutional
- 4.Each party to bear their own costs
- Jurisdiction invoked
- Articles 41, 47 and 230(4) of the Constitution of Kenya, 2010 (petitions on constitutional remuneration and labour rights)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Medical Practitioners Pharmacists and Dentists Union & another v Salaries and Remuneration Commission & 4 others; 47 County Government Public Service Boards & 56 others (Interested Parties) (Employment and Labour Relations Petition E006 of 2023 & Petition 048 of 2023 (Consolidated)) [2023] KEELRC 2964 (KLR)", Case Analysis (2023). Petition No. E006 of 2023 (Consolidated with Petition No. E048 of 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2964/eng@2023-11-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.