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ELRCDismissedNot stated in the judgment (Statement of Claim dated 9th April 2018)· [2024] KEELRC 616 (KLR)

Kenya County Government Workers Union v Kitui County Government (Employment and Labour Relations Cause 608 of 2018) [2024] KEELRC 616 (KLR)

Employment and Labour Relations Court
14 March 2024
6,929 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~28 min to read original · ~4 min brief

The bottom line

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The Employment Court dismissed the union's case because it was filed nine years after the 2009 dismissals, breaching the mandatory three-year limit.

What this practically means

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Executive summary

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The Claimant union sued on behalf of two grievants, Pius Mwala Musili and Esther Ndanu Luka, employees of the defunct Town Council of Mwingi who were suspended on 24th December 2008 and dismissed on 16th April 2009 for allegedly organising and participating in an illegal strike and sit-in over non-remittance of statutory deductions. The union alleged victimization for union activities, an over-long suspension contrary to the 2006 CBA, a substantively unjustified disciplinary process, and denial of appeal rights, and sought reinstatement-type relief against the County Government of Kitui. The Respondent denied liability, asserting the grievants were never its employees, that due process was followed, that the union lacked locus, and that the claim was time barred. The court framed five issues. On victimization, it applied the Supreme Court's higher standard of proof and found the Claimant had not identified other undisciplined participants, so discrimination was unproved. On procedure, it held the CBA had lapsed in 2007 and the Public Service Commission (Local Authorities Officers) Regulations, 1984 governed, rendering the suspensions procedural. On substance, it found the Council lacked a verifiable and valid reason for dismissal. The Respondent was held to be the successor of the Town Council of Mwingi under Section 33 of the Sixth Schedule, but the grievants were terminated before devolution and were never its employees. Ultimately the claim, filed in 2018 over a 2008/2009 cause of action, was dismissed as time barred under section 90 of the Employment Act, with each party bearing its own costs. Judgment delivered virtually on 14th March 2024 by Anna Ngibuini Mwaure, J.

Key legal issues

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01

Whether the grievants were victimized for union activities

Holding

Not proved; the Claimant failed to discharge the initial evidential burden and did not identify other undisciplined participants

Reasoning

The court adopted the Supreme Court's standard that constitutional rights claims require proof at a higher level than the ordinary civil balance of probability, and that the petitioner bears the initial burden before it shifts. Although the grievants were suspended for participating in union meetings, the Claimant did not identify other employees who participated and escaped discipline, so the allegation of discriminatory singling out was not proved.

p. 11
02

Whether the suspensions were unprocedural under the CBA

Holding

Suspension was procedural because the CBA had lapsed in 2007 and the Public Service Commission (Local Authorities Officers) Regulations, 1984 applied

Reasoning

The CBA expired on 01.09.2007 with no transitional clause, and the grievants were suspended in December 2008. The court noted CW2's concession that where the CBA conflicts with Kenyan law, the law prevails, and that CBA provisions are inferior to statutory law. A lapsed CBA could not afford protection, so the suspensions were not unprocedural.

p. 11
03

Whether the dismissal was substantively unjustifiable

Holding

The Council did not demonstrate a verifiable and valid reason to dismiss the grievants

Reasoning

Applying the reasonable-employer test from British Leyland v Swift as adopted in Co-operative Bank v Bifuk, the court found the Town Council dismissed the grievants for participating in union activities without demonstrating a verifiable and valid reason, even though the discrimination allegation itself was unproved.

p. 12
04

Whether the Respondent is the successor of the Town Council of Mwingi

Holding

The Respondent is the successor, but the grievants were not its employees as they were terminated before devolution

Reasoning

Relying on Section 33 of the Sixth Schedule to the Constitution and the holding in Umenda v Municipal Council of Kisii, county governments are the natural and presumptive legal successors of defunct local authorities. However, the grievants were terminated in 2009, before the 2010 Constitution's effective date, so they were never absorbed into the County Government's service.

p. 12
05

Whether the claim is time barred

Holding

The claim is time barred and is dismissed

Reasoning

Section 90 of the Employment Act mandates filing within three years of the act complained of. The grievants were dismissed in 2009; the claim was filed on 9th April 2018. Pending appeals and a conciliation process do not suspend limitation time, so the claim was statute-barred.

Legal principles established

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  • A claim based on or arising out of a contract of service must be filed within three years of the act complained of; no court may extend that period absent statutory authority
  • County governments are the natural and presumptive legal successors of defunct local authorities, but employees terminated before the transition cannot be deemed county employees

Court orders

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  1. 1.The claim dated 9th April 2018 is dismissed as time barred
  2. 2.Each party to meet their costs of the suit

Authorities

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Legislation

  • Collective Bargaining Agreement (RCA No. 144 of 2006)Clauses 3, 30, 31, 32, 51
  • Labour Relations ActSections 2, 4(2), 5(2)(c), 61, 62, 62(1), 62(3), 63(3), 69(a)
  • Employment ActSections 13, 90
  • Public Service Commission (Local Authorities Officers) Regulations, 1984Rules 24(2), 24(3), 29(1), 29(2)
  • Service Commissions Act (repealed)Section 13
  • Evidence ActSections 108, 109
  • Constitution of Kenya, 2010Articles 48, 159(2)(d); Section 33 of the Sixth Schedule
  • Limitation of Actions Act (Cap. 22)Section 4(1)
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure Act (Chapter 21)Section 1B
  • Employment and Industrial Relations Act (as quoted by Court of Appeal)Section 15
  • ILO Convention No. 87 on Freedom of Association-
  • ILO Convention No. 98 on the Right to Organize and Collective BargainingArticle 1
  • Labour Relations RulesSection 69(a) (as cited by the Ministry of Labour letter)

Cases cited (16)

  • Simon Gwer & 5 Others v Kenya Medical Research Institute & 3 Others
    (2020) eKLR
  • Raila Odinga & Others v Independent Electoral & Boundaries Commission & Others
    Petition No. 5 of 2013
  • Kenya Union Of Domestic, Hotels, Educational Institutions, And Allied Workers [Kudheiha] v Lenana Mount Hotel
    [2014] eKLR
  • Victor Kiptoo Ngeno v A.O. Bayusuf & Sons Ltd
    [2013] eKLR
  • Peter Mbuthia Gitau v Kenya Revenue Authority
    [2019] eKLR
  • Michael Dowling vs. Workplace Safety & Insurance Board
    [2004] CAN LII 436 92
  • Judicial Service Commission v Gladys Boss Shollei & another
    [2014] eKLR
  • Argos Furnishers Ltd vs. Municipal Council of Mombasa
    HCCC No. 13 of 2008
  • Mukiria Farmers Co-operative Society Ltd v Jacob Rukaria & 5 others
    [2017] eKLR
  • Co-operative Bank of Kenya Limited –Versus- Banking Insurance & Finance Union (K)
    [2017] eKLR
  • British Leyland UK Ltd –Versus- Swift
    (1981) IRLR 91
  • J.A. M. Umenda & another Vs. Municipal Council of Kisii & 6 others
    Judicial Review Application No. 3 of 2013 [2013] eKLR
  • Rift Valley Railways (Kenya) Ltd v Hawkins Wagunza Musonye & another
    [2016] eKLR
  • John Kiiru Njiri vs University of Nairobi
    (2021) eKLR
  • G4S Security Services (K) Limited v Joseph Kamau & 468 others
    [2018] eKLR
  • Divecon v Samani
    (1995 – 1998) I EA 48 at p. 54
Jurisdiction invoked
First-instance jurisdiction under the Employment and Labour Relations Court Act; dispute reported to the Ministry of Labour under section 62 of the Labour Relations Act

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 Kitui County Government (Employment and Labour Relations Cause 608 of 2018) [2024] KEELRC 616 (KLR)", Case Analysis (2024). Not stated in the judgment (Statement of Claim dated 9th April 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/616/eng@2024-03-14

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