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Court of AppealDismissedCivil Appeal No. 87 of 2016

Kenya County Government Workers Union v Kisumu County Public Service Board & another [2019] KECA 587 (KLR)

Court of Appeal of Kenya
27 June 2019
2,574 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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The Court of Appeal ruled that Kisumu County Government cannot reinstate workers dismissed before it was created, ending the union's appeal.

What this practically means

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Executive summary

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The Kenya County Government Workers Union, on behalf of forty unionisable members (the interested parties), appealed against the decision of the Employment and Labour Relations Court at Kisumu (Maureen Onyango, J.) which dismissed its constitutional petition seeking reinstatement of the members into employment with the Kisumu County Government. The union contended that the interested parties, employees of the defunct Kisumu Municipal Council engaged by the Public Service Commission, were deemed transferred to the county government upon the promulgation of the 2010 Constitution, and that their dismissal by the Public Service Commission in June 2012 breached the Employment Act, the Constitution, a collective bargaining agreement and the rules of natural justice. The respondents countered that they were established in 2013, after the dismissals, and had no involvement in or liability for them. The Court of Appeal analysed the transition framework under the Constitution's Sixth Schedule, the County Governments Act and the Transition to Devolved Government Act. It held that only public officers serving in the county on the date of the constitution of the county government could be deemed to be in its service on secondment; the interested parties had been dismissed in 2012 and were never transferred or redeployed by the Transition Authority. The county government and its public service board therefore had no statutory power or duty to reinstate them or reverse the dismissal, rendering the petition incompetent. The court declined to address grounds concerning the lawfulness of the Public Service Commission's decision, dismissed the appeal, and ordered each party to bear its own costs of the appeal.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the actions of the defunct Kisumu Municipal Council bind the respondents (the Kisumu County Government and its Public Service Board)
  2. 2.Whether the interested parties were deemed transferred to the County Government and its Public Service Board under section 138 of the County Governments Act and the transition legislation
  3. 3.Whether the respondents had any liability or statutory power to reinstate the interested parties dismissed by the Public Service Commission
  4. 4.Whether the E&LRC erred in failing to analyse evidence and assign reasons for its decision

Key legal issues

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01

Whether the Kisumu County Government and its Public Service Board succeeded to liability for dismissals effected by the Public Service Commission before their establishment

Holding

They did not; the respondents were established after the dismissals and had no statutory power or duty to reinstate or reverse the dismissal, so the petition against them was incompetent.

Reasoning

Article 176(1) was suspended by Clause 2(2) of the Sixth Schedule until the first county elections in 2013. Section 138 of the County Governments Act deems only officers serving in the county on the date of constitution of the county government to be in its service on secondment. The interested parties had been dismissed by the Public Service Commission in 2012 for forging academic certificates, before the respondents existed, and the Transition Authority did not transfer or redeploy them. Clause 33 of the Sixth Schedule makes the new Public Service Commission the legal successor of the old one, so any review of the dismissals lay with it, not the respondents.

p. 4
02

Whether the E&LRC erred in dismissing the petition without analysing evidence and assigning reasons

Holding

The dismissal was correct on the threshold ground of non-liability of the respondents; the remaining grounds concerning the lawfulness of the Public Service Commission's decision were not addressed as unnecessary.

Reasoning

The court found the dispositive issue was that the respondents had no liability for dismissals effected before their constitution. Having reached that conclusion, it declined to consider the other grounds relating to the lawfulness of the Public Service Commission's decision, holding it undesirable to deal with them.

p. 4

Legal principles established

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  • Only public officers serving in a county on the date of the constitution of the county government are deemed to be in the service of the county government on secondment; persons dismissed before that date are not transferred to, inherited by, or employable at the instance of, the county government.
  • A county government and its county public service board have no statutory power or duty to reinstate persons dismissed by the Public Service Commission before their establishment; a petition against them on such claims is incompetent.
  • Under Clause 33 of the Sixth Schedule to the Constitution, the Public Service Commission established under Article 233 of the 2010 Constitution is the legal successor of the Public Service Commission established under the former Constitution.

Court orders

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  1. 1.The appeal is dismissed
  2. 2.Each party to bear its own costs of the appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
Employment and Labour Relations Court of Kenya at Kisumu
ELRC Petition No. 3 of 2015
Jurisdiction invoked
Appeal from the Employment and Labour Relations Court (first appeal on facts and law)

Relief refused

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Reinstatement of the interested parties to employment with the Kisumu County Government

The County Government and its Public Service Board came into existence after the dismissal and had no statutory power or duty to reinstate the interested parties or reverse the Public Service Commission's dismissal

p. 4

Costs of the appeal

The court below made no order as to costs and it was just that each party bear its own costs

p. 4

Costs

Each party to bear its own costs of the appeal

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The County Government of Kisumu and its County Public Service Board which came in existence after the interested parties were dismissed by their former employer, that is, the Public Service Commission had no statutory power or duty to reinstate the interested parties or to reverse the dismissal by the Public Service Commission.
p. 4No successor liability or reinstatement power of county governments over pre-existing PSC dismissals
Section 138 of CGA specifically states that only the public officers who were serving in the County of Kisumu on the date of the constitution of the County Government of Kisumu could be deemed to be in service of the County Government on secondment.
p. 4Scope of deemed secondment under section 138, County Governments Act
For the foregoing reasons, the appeal has no merit and is hereby dismissed. The court below did not award costs. It is just that each party should bear its own costs of the appeal.
p. 4Final orders and costs

Issues in the judgment

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minor

The coram lists 'J. MOHAMMED' with initial only, making full name identification ambiguous; recorded as printed.

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 Kisumu County Public Service Board & another [2019] KECA 587 (KLR)", Case Analysis (2019). Civil Appeal No. 87 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/587/eng@2019-06-27

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