Alloice King'ala Ngereza & 3 Others v Speaker, Nyamira County Assembly & 3 Others [2015] KEELRC 10 (KLR)
The bottom line
#Kenya's Employment Court ruled Nyamira County Assembly employees keep their original, better pay terms—confirmation letters can't slash your employment benefits.
What this practically means
#Executive summary
#Key legal issues
#Validity of the recruitment of the Petitioners
The employment was regular, lawful and legitimate as the appointments had not been challenged or withdrawn by the Respondents, who themselves purported to confirm them.
The Respondents created positions, advertised them, vetted candidates and issued letters of appointment. Their claim that recruitment was irregular was self-defeating since they conducted it and never impugned it, and they confirmed the appointments' validity by issuing letters of confirmation dated 1st July 2015. The court relied on the Court of Appeal decision in Speaker of the County Assembly – Kisii County v James Omamba Nyarge on delay in challenging appointments.
Power to set remuneration without SRC advice
The Respondents did not have power to set remuneration without SRC advice; in fact the original appointments were on SRC-approved terms, and no evidence supported the claimed rationalisation.
Relying on TSC v KNUT, SRC advice is constitutionally binding under Article 230(4)(b). The original letters of appointment reflected the SRC circular of 29th July 2013. The alleged rationalisation and realignment was unsupported by any report, minutes or correspondence, and letters of confirmation are not the proper channel for communicating such rationalisation.
Validity of the confirmation letters varying terms
The confirmation letters were invalid fresh letters of offer imposing less favourable terms; employment terms had already been confirmed by operation of Sections 42 and 26 of the Employment Act.
Section 42(3) prohibits probation beyond twelve months; once probation lapsed without extension, terms in the appointment letters were confirmed by operation of Section 26. A confirmation of appointment is not an opportunity to give new terms, and a unilateral variation of an employment contract is impermissible; the impugned letters were for different and less favourable terms.
Constitutional violation and unfair labour practice
Failure to consult the Petitioners before detrimental changes amounted to unfair labour practice and violation of their constitutional rights; the clean hands objection failed.
The letters of appointment promised confirmation on stated terms, generating a legitimate expectation. Employees must be consulted before detrimental changes; failure to do so is an unfair labour practice and unconstitutional. The unclean hands objection based on alleged irregular recruitment failed because the Respondents themselves recruited and confirmed the Petitioners and could not be heard to claim irregularity.
Legal principles established
#- Probationary employment beyond the statutory maximum period results in confirmation of the employee on the original terms by operation of law.
- A letter of confirmation cannot vary employment terms; confirmation after probation can only be on terms already set in the letter of appointment or on better terms.
- Failure to consult an employee before making detrimental changes to the employment contract amounts to an unfair labour practice and is unconstitutional.
- The advice of the Salaries and Remuneration Commission on remuneration of public officers is binding.
Court orders
#- 1.Declaration that the terms of engagement of the Petitioners are those contained in their original letters of appointment
- 2.The letters of confirmation dated 1st July 2015 varying the terms of employment of the Petitioners are brought into the court and quashed
- 3.The Respondents to pay costs of the Claimants
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under Article 162(2) of the Constitution; constitutional petition for violation of Articles 10(2)(b)&(c), 27(1), 28, 41(1), 47(1)&(2) and 50(1)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Alloice King'ala Ngereza & 3 Others v Speaker, Nyamira County Assembly & 3 Others [2015] KEELRC 10 (KLR)", Case Analysis (2015). Petition No. 19 of 2015 (consolidated with Kisumu ELRC Cause No. 337 of 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/10/eng@2015-12-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.