Kenya National Union of Nutritionists and Dieticians v Nairobi City County Government & 2 others (Employment and Labour Relations Cause E972 of 2023) [2024] KEELRC 188 (KLR)

The Act defines 'Government' as the National Government and 'public service' as employment in its service. County Governments are not represented on the Board of Trustees, and the only county-related window is section 33 on transfer of services. The Grievants were newly hired by the 3rd Respondent for the NMS arrangement, not transferred from National Government service, so neither the Act nor its section 51 conversion provision applies to them.

The circular flowed from the Head of Public Service's memo of 20th November 2020, which excluded employees on Local Agreement (contract) terms. The Grievants were hired on Local Agreement terms and served under the NMS, a special programme vehicle not anchored in law. Further, the 3rd Respondent's constitutional mandate over counties is limited to hearing appeals under article 234(2)(i) and it could not unilaterally impose personnel on the County.

Clause 3.3 of the Handover Framework required seconded staff to revert to their previous positions, while newly hired staff were to be absorbed only subject to vacancies and county staffing needs. The power to appoint county personnel is exclusively vested in the 2nd Respondent under section 59(1)(b) of the County Governments Act, and any circular purporting to direct otherwise would be null and void.

No evidence established discrimination. The advertisement was in anticipation of the lapse of the fixed term contracts by effluxion of time and complied with the constitutional imperative that public positions be competitively and equitably filled. The Respondents had indicated the Grievants were free to apply for the positions.