Kihiko & 49 others v Ministry of Environment, Climate Change and Forestry & 2 others (Petition E090 of 2023) [2023] KEELRC 3014 (KLR)

Employment and Labour Relations Court

27 November 2023

BOByram Ongaya

2,384 words in judgment

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The bottom line

Kenyan court dismissed meteorologists' promotion discrimination claim for insufficient proof but protected them from any workplace retaliation for filing the case.

What this practically means

Executive summary

The petitioners, Principal Meteorological Technologists in the Kenya Meteorological Department promoted in 2017, complained that the Public Service Commission (2nd respondent) discriminated against them by promoting 45 officers to Senior Principal Meteorological Technologist (Job Group P) in June 2021 and a further 11 in March/April 2022 following an appeal by the Director, while leaving them in Job Group N despite the Scheme of Service providing for promotion after three years of stagnation. They sought declarations of violation of Articles 27 and 47 of the Constitution and section 5 of the Employment Act, damages, promotion, salary revision, and a non-victimisation order. The respondents opposed, arguing the petition bypassed statutory procedures, that promotion must not exceed the approved staff establishment, and that the criteria of vacancies, years in post, age and seniority were properly applied. The court found the explanation for promoting only 11 officers unsatisfactory, as it did not account for two of the 45 established positions, but held the petitioners had failed to show by analysis that they were in exactly similar positions to those promoted under the applicable criteria. The declaration of violation and consequential remedies therefore failed. The court held the constitutional petition was nonetheless the appropriate procedure, as no alternative statutory process was shown, and issued a declaration that the petitioners shall not be victimised for prosecuting the well-founded petition. Each party was ordered to bear its own costs.

Key legal issues

Whether the petitioners proved discrimination under Article 27 and section 5 of the Employment Act

Holding

Discrimination not established; petitioners did not show they scored equally with those promoted

Reasoning

The 2nd respondent explained the promotions of 45 and then 11 officers as based on vacancies arising from retirements and succession management criteria. However, the court found the explanation for promoting only 11 unsatisfactory as it did not account for 2 of the 45 established positions. Nonetheless, the petitioners failed to demonstrate by analysis that each of them was in an exactly similar position to the promoted officers under section 36 of the Public Service Commission Act criteria and the seniority definition in the HR manual.

p. 6

Whether the constitutional petition was an abuse of procedure in avoidance of statutory mechanisms

Holding

The petition was the appropriate path; no alternative statutory procedure was shown

Reasoning

The 1st and 3rd respondents argued the petitioners circumvented the Employment Act and the doctrine of exhaustion. The court found no alternative statutory procedure was identified and that the constitutional petition was the appropriate vehicle for the alleged violations, even though the claims ultimately failed on the merits.

p. 6

Legal principles established

An employee shall not be victimised for initiating a well-founded grievance or legal proceedings, even if unsuccessful

Court orders

1.Declaration that the respondents shall not victimise, harass or punish the petitioners on account of initiating and prosecuting the petition
2.Each party to bear own costs of the proceedings

Authorities

Legislation

Constitution of Kenya, 2010Articles 10, 27, 41, 47, 232
Employment Actsections 5, 46
Public Service Commission Act, 2017sections 27, 36
Public Service Commission Regulations, 2020regulation 20(1)
Labour Relations Act
Revised Scheme of Service for Meteorological Personnel
Human Resources and Procedures Manualsection B.29

Cases cited (2)

Mumo Matemu Vs. Trusted Society of Human Rights Alliance
(2013) eKLR
Annarita Karimi Njeru
(1979) KLR 154

Jurisdiction invoked: Articles 27, 41 and 47 of the Constitution; Employment and Labour Relations Court jurisdiction over alleged violations of rights in employment

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Kihiko & 49 others v Ministry of Environment, Climate Change and Forestry & 2 others (Petition E090 of 2023) [2023] KEELRC 3014 (KLR)", Case Analysis (2023). Petition dated 19.05.2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3014/eng@2023-11-27

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