Kenya County Government Workers Union v Nairobi County Public Service Board (Cause 58 of 2020) [2025] KEELRC 749 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the grievants are entitled to payment of non-practice allowance under the CBA
Yes. Clause 55 of the registered CBA entitled officers registered with recognized professional bodies to non-practicing allowance of Kshs. 5,000/= per month; the term became part of the grievants' contracts of service and the Respondent's failure to pay was a breach and an unfair labour practice.
The CBA signed on 12th October, 2013 and registered on 7th February, 2013 provided for non-practicing allowance for registered professionals. By virtue of the grievants' unionisable status, that provision was incorporated into their contracts. The Respondent filed a response but called no witness, so the Claimant's evidence stood uncontroverted, though the Claimant still bore the burden of proof, which it discharged through documentary and oral evidence. Correspondence from the Permanent Secretary, the Public Service Commission and the Cabinet Secretary all directed compliance. Paying other professionals while excluding the 483 nurses was discriminatory, following Louw v Golden Arrow Bus Services.
Whether the Respondent's failure to adduce evidence shifted or discharged the burden of proof
No. The burden remained on the Claimant throughout; the defence's silence meant only that the Claimant's evidence was uncontroverted and the statements of defence remained mere allegations.
Relying on the Respondent's own citation of Michael Wanjohi Mathenge v Lydiah Nyaguthii Agatha & Another, the court held the burden of proving the case was upon the plaintiff, who could not shift it to the defendant. At the same time, citing Janet Kaphiphe Duma v Marie Stopes International, the court found the Claimant's evidence uncontroverted since the Respondent only filed a statement of response without calling witnesses. The court then assessed whether the Claimant had discharged its burden on a balance of probabilities and found that it had.
Whether the differential payment of non-practice allowance amounted to discrimination
Yes. Paying the allowance to other healthcare professionals while excluding the 483 nurses was a clear case of unfair discrimination on arbitrary or unreasonable grounds.
The court accepted the Claimant's assertion that some employees of the Respondent enjoyed the non-practice allowance while the 483 nurses did not, viewing this as unequal treatment. It applied the South African Labour Court decision in Louw v Golden Arrow Bus Services (Pty) Ltd, where denial of two allowances was held to amount to unequal treatment and unfair discrimination founded on arbitrary or unreasonable grounds. This also engaged Article 27 (freedom from discrimination) and Article 41 (fair labour practices) of the Constitution, as argued by the Claimant.
Legal principles established
#- Terms of a registered CBA are incorporated into the contracts of employment of unionisable staff covered by it
- A plaintiff must prove its case even where the defendant does not adduce evidence; unproved assertions in a defence remain mere allegations
Court orders
#- 1.A declaration that the Respondent is in breach of the Collective Bargain Agreement signed between the Claimant and itself
- 2.An order for payment of all accrued non-practice allowance for each of the 483 nurses
- 3.An order directing the Respondent to pay the 483 nurses their non-practice allowance henceforth without fail
- 4.Each party to bear their own costs of the suit in the interest of social partnership
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under Article 162(2) of the Constitution (implied; not expressly quoted in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya County Government Workers Union v Nairobi County Public Service Board (Cause 58 of 2020) [2025] KEELRC 749 (KLR)", Case Analysis (2025). Not stated in the judgment extract (Claimant's Memorandum of Claim dated 29th January, 2020, filed 3rd February, 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/749/eng@2025-03-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.