Kenya County Government Workers Union v Kitui County Government (Employment and Labour Relations Cause 608 of 2018) [2024] KEELRC 616 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the grievants were victimized for union activities
Not proved; the Claimant failed to discharge the initial evidential burden and did not identify other undisciplined participants
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.
Whether the suspensions were unprocedural under the CBA
Suspension was procedural because the CBA had lapsed in 2007 and the Public Service Commission (Local Authorities Officers) Regulations, 1984 applied
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.
Whether the dismissal was substantively unjustifiable
The Council did not demonstrate a verifiable and valid reason to dismiss the grievants
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.
Whether the Respondent is the successor of the Town Council of Mwingi
The Respondent is the successor, but the grievants were not its employees as they were terminated before devolution
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.
Whether the claim is time barred
The claim is time barred and is dismissed
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
#- 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
#- 1.The claim dated 9th April 2018 is dismissed as time barred
- 2.Each party to meet their costs of the suit
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.