Murang’a County Public Service Board v Grace N. Makori & 3 others
The bottom line
#Kenya's Court of Appeal ruled that Murang'a County must absorb seconded health workers on permanent, pensionable terms, affirming their legitimate expectation of equal treatment.
What this practically means
#Executive summary
#Key legal issues
#Whether the learned Judge lacked jurisdiction
The ELRC had jurisdiction; the appellant's complaint went to interpretation of terms of service, not jurisdiction
The court accepted the Lillian S dictum as restated in Mumo Matemu but found no jurisdictional defect: no one contended the judge lacked competence to entertain the dispute. Questioning how a judge construed terms of service is wholly different from acting without jurisdiction. The complaint on jurisdiction was therefore misconceived.
Whether the PSC/MOH letters unlawfully encroached on the appellant's exclusive staffing mandate under Article 235 and Section 59 of the County Governments Act
They did not; they merely communicated a pre-existing national policy predating devolution, adopted through consultation with the Council of Governors
Article 189(1) commands respect for functional and institutional integrity, not autonomy; Article 6 and Article 189(2)-(4) require consultation and cooperation. The Constitution created a bridge, not a wall, between levels of government. The letters communicated agreed policy implemented by two-thirds of counties and did not usurp the appellant's mandate.
Whether the respondents were entitled to absorption on permanent and pensionable terms
Yes; they had a legitimate, constitutional expectation of equal treatment with the first batch of ESP workers already absorbed
National government policy, accepted by the Council of Governors, was that ESP workers be absorbed on permanent and pensionable terms at contract expiry. The appellant had notice of the policy from January 2014. It could not resile from obligations freely entered into or lawfully inherited, and discriminating against the second batch violated Articles 27 and 41.
Whether the judge granted relief not prayed for by pegging absorption to expiry of the three-year contracts
No variance existed between the declaration and prayer one, which referenced the Cabinet Secretary's letter of 24th January 2014
The letter itself communicated that absorption should be into the regular establishment on permanent terms, with 2011 employees due for absorption in 2014. The effective date corresponded to what was pleaded and communicated, consistent with the Trojan v Nagappa Chettiar principle against granting unpleaded relief.
Whether Article 187(2)(a) obliged the National Government to fund the absorption
No; health services were not a transferred function but an assigned county function under the Fourth Schedule
Article 187 governs transfer of functions by agreement. County health services are listed as a county function in the Fourth Schedule, with only health policy national. Absent a transfer agreement, the appellant cannot demand resources under Article 187(2)(a).
Whether the judge disregarded the budgetary cycle
No; the judgment expressly accommodated the budget cycle by allowing compliance by 1st August 2015
The judge considered the budgetary cycle and gave about three months to comply. The appellant provided no evidence of financial burden and should have provided from January 2014 when notified. The approach was consistent with Kenya Engineering Workers Union v Reliance Industries on retrospective awards, and the appellant had substantially complied.
Legal principles established
#- Devolution creates cooperation and consultation between national and county governments based on functional and institutional integrity, not insulated autonomy; inter-level communications of pre-existing policy do not usurp county mandates
- County public service boards are bound by pre-existing national employment policy, communicated and mutually agreed with the Council of Governors, and employees seconded under that policy acquire a legitimate and constitutional expectation of absorption on permanent and pensionable terms at expiry of their contracts, enforceable on equality grounds
- Contractual employees of the PSC, whatever the nature of their terms, remain PSC appointees deemed seconded to county governments under Section 138(1) of the County Governments Act
Court orders
#- 1.The appeal is dismissed with costs to the respondents
- 2.The judgment and decree of the Employment and Labour Relations Court declaring the respondents entitled to retention on permanent and pensionable terms with effect from expiry of their three-year contracts stands affirmed
- On appeal from
- Employment and Labour Relations Court at Nyeri
- E.L.C. Petition No. 1 of 2015
- Jurisdiction invoked
- First appeal under the Employment and Labour Relations Court jurisdiction; constitutional provisions on devolution (Articles 6, 187, 189, 235) and fair labour practices (Articles 27, 41) under consideration
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Murang’a County Public Service Board v Grace N. Makori & 3 others", Case Analysis (2015). Civil Appeal No. 37 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/117/eng@2015-12-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.