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ELRCAllowedStatement of Claim dated 10th July 2014, filed 12th July 2014 (number not stated in judgment)· [2019] KEELRC 29 (KLR)

Susan Murila & another (COTU) v Richard Kipkoech Langat & another [2019] KEELRC 29 (KLR)

Employment and Labour Relations Court
20 December 2019
MOMaureen Onyango
5,597 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The claimant, employed by the 2nd respondent (NSSF) in February 2011 as Manager (Administration) after a competitive recruitment advertised through PricewaterhouseCoopers, sued the Managing Trustee and the Board of Trustees over two internal memoranda dated 22nd November 2013 and 5th May 2014. The memos moved security services, air ticketing/protocol and general insurance functions out of her department without consulting her, amending her contract or issuing written notification. She sought declarations that the memos were void for unconstitutionality and breach of statute, plus permanent injunctions and costs, arguing violations of Articles 41, 47, 21(1) and 28 of the Constitution and Sections 10(5) and 13(1) of the Employment Act. The respondents denied any variation of her terms, asserting a lawful realignment under the new NSSF Act to increase efficiency, that the job advert was an invitation to treat never incorporated into her contract, and that any consent could be implied from her continuing to work. The respondent called no witness, relying on written submissions. The court found Section 10(5) couched in mandatory terms requiring consultation and a revised written contract before any change to prescribed employment particulars. Applying the Cardinal Otunga Khaemba, Justina Mutitu Nyaga and Simeon Kiprotich Langat decisions, it held the memos stripped major responsibilities from the claimant's position without job evaluation or board approval, eroding and downgrading her role. She proved on a balance of probabilities breaches of Sections 10(5) and 13(1) and an unfair labour practice under Article 41. The memos were declared void; permanent injunctions were granted and costs awarded to the claimant.

Key legal issues

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01

Whether unilateral variation of an employee's job description without consultation violates the Employment Act and Article 41

Holding

Yes; the memos stripping the Manager (Administration) of key roles without consultation, written revision and notification breached Sections 10(5) and 13(1) of the Employment Act and constituted an unfair labour practice under Article 41, rendering the memos void.

Reasoning

Section 10(2)(c) makes the job description a prescribed particular of the contract. Section 10(5) mandatorily requires consultation and a revised written contract before any change. The respondent withdrew security, insurance, air ticketing and protocol functions by internal memo without job evaluation, board approval or consultation, eroding a substantial component of the claimant's role and downgrading it. The claimant proved these acts on a balance of probabilities.

p. 8
02

Whether the employer's alleged reserved right to vary terms unilaterally and the claimant's continued work implied consent

Holding

No; the authorities cited by the respondent on implied consent and unilateral variation actually support the claimant's position that unilateral variation amounts to fundamental breach, giving her legitimate grounds to seek the court's intervention.

Reasoning

The respondent argued the job advert was an invitation to treat and that continued work implied acceptance of the revised terms. The court held all authorities relied on by the respondent support the proposition that unilateral variation of a contract of employment amounts to fundamental breach, so the claimant had valid grounds to approach the court to stop the continuing breach rather than being taken to have acquiesced.

p. 8
03

Whether the changes were a lawful realignment under the NSSF Act in exercise of managerial prerogative

Holding

No; there was no job evaluation or approval of the changes by the respondent's board to re-allocate the roles, so the realignment was not lawfully effected.

Reasoning

The respondent contended the restructuring was a lawful realignment occasioned by the new NSSF Act. The court found, consistent with Petition No. 17 of 2015 which was consolidated but settled, that there was no job evaluation and no board approval for re-allocating the Manager (Administration) roles, and that the position would be downgraded by the changes.

p. 8

Legal principles established

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  • Where there is any change in the prescribed employment particulars, the employer must, in consultation with the employee, revise the contract to reflect the change and notify the employee in writing; Section 10(5) is mandatory.
  • Unilateral withdrawal of key responsibilities from an employee's job description without consultation and written revision amounts to breach of Section 10(5) and 13(1) of the Employment Act and an unfair labour practice under Article 41.

Court orders

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  1. 1.Declaration that the respondent's internal memoranda dated 22nd November 2013 and 5th May 2014 are void for breach of Section 10(5) and 13(1) of the Employment Act and Article 41 of the Constitution of Kenya 2010
  2. 2.Permanent injunction restraining the respondent from continuing to act in breach of the law through the dilution of the claimant's job and/or particulars of employment
  3. 3.Permanent injunction restraining the respondents from any further violation of the claimant's constitutional and statutory rights
  4. 4.Respondent to pay the claimant's costs of the suit
Jurisdiction invoked
Constitution of Kenya, 2010, Articles 41 and 47; Employment Act Sections 10(5) and 13(1) (employment and labour relations jurisdiction of the ELRC)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Susan Murila & another (COTU) v Richard Kipkoech Langat & another [2019] KEELRC 29 (KLR)", Case Analysis (2019). Statement of Claim dated 10th July 2014, filed 12th July 2014 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/29/eng@2019-12-20

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