Paul Kimeto Cheruiyot v Governor Narok County & 3 others [2020] KEELRC 972 (KLR)
The bottom line
#A Kenyan court dismissed a county worker's salary cut claim because he accepted a new job appointment, and pleaded his constitutional case poorly.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the petition herein is premature pursuant to the provisions of section 77 of the County Government Act, 2012
- 2.Whether there are constitutional rights violations
- 3.Whether the remedies sought should issue
- 4.Who should pay costs
Key legal issues
#Whether the petition was premature for failure to appeal to the PSC under section 77 of the County Government Act
The petition was not premature; section 77(2) uses 'may' and is non-mandatory, and the court's jurisdiction over employment disputes cannot be ousted.
The court held that Articles 162(2)(a) and (3), 165(5) and (6) and section 12 of the ELRC Act and section 87 of the Employment Act confer original jurisdiction on the court over employment disputes. Constitutional and statutory jurisdiction cannot be removed and conferred on a quasi-judicial body such as the PSC. Parliament's use of 'may' in section 77(2) of the County Government Act makes it permissive, so the petitioner was before the right forum.
Whether there were constitutional violations of Articles 10, 41 and 47
No constitutional violation was established; the petition did not plead violations with the precision required by Anarita Karimi Njeru.
Relying on Anarita Karimi Njeru and Mumo Matemo, the court held that a petition must set out with reasonable precision the provision infringed and the manner of infringement. The petitioner merely cited articles without material particulars; a memorandum of claim would have been adequate. Accordingly the court found no constitutional violations.
Whether the reduction of the petitioner's salary was unlawful under sections 10(5), 13 and 17 of the Employment Act
The reduction was lawful; the petitioner accepted a fresh appointment on 20 June 2017 upon expiry of his secondment and cannot claim the secondment terms.
The petitioner's secondment from TSC lapsed on 19 June 2017. He was then appointed as ECDE Coordinator JG 'N' by letter dated 20 June 2017 which he accepted by signing on 22 June 2017. This was not continuous employment; parties retained liberty to regulate terms in writing. His consent to the new appointment defeated claims premised on the secondment terms, and nothing was owed beyond the appointment letter's terms.
Lawfulness of the 4th respondent's regularisation of the petitioner's grading
The 4th respondent was entitled, under its statutory mandate, to review and regularise erroneous grading done unilaterally by the County Secretary.
The court noted the petitioner was irregularly seconded and graded at job group 'P' by the County Secretary without the 4th respondent's approval, contrary to the Human Resource Manual and schemes of service. Recruiting outside established policy guidelines is unlawful and a court cannot confirm illegal actions; the Board's regularisation restored parity and equity and matched the petitioner's grade to his qualifications and experience.
Legal principles established
#- The ELRC's jurisdiction over employment and labour relations disputes is constitutional and statutory and cannot be removed and conferred on a tribunal; section 77(2) of the County Government Act, being couched in 'may', is non-mandatory.
- A party seeking redress on a constitutional matter must plead the specific provisions infringed and the manner of infringement with precision (Anarita Karimi Njeru principle).
- Secondment is a legitimate mode of sourcing employees; a seconded employee remains subject to the terms of the contract with the principal employer and the rules of the placement employer.
- Recruitment of employees outside established policy guidelines and regulations is unlawful, and an employer is obligated to right such wrongs.
Court orders
#- 1.The petition is dismissed in its entirety
- 2.The petitioner shall pay the respondents 50% of their costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 162(2)(a) and (3) as read with Article 165(5) and (6) of the Constitution; section 12 of the Employment and Labour Relations Court Act, 2011; section 87 of the Employment Act, 2007
Relief refused
#Declaration that the reduction of salary violated Articles 10, 41 and 47 of the Constitution
No constitutional violation was pleaded or proved with the precision required
Payment of salary arrears of Ksh.292,300 and reinstatement of salary of Ksh.86,480
The petitioner accepted a fresh appointment by letter dated 20 June 2017 upon lapse of his secondment; the salary paid matches the appointment letter
Injunction restraining the respondents from reducing the petitioner's remuneration, and compensation and general damages
The petition having failed, no remedies were warranted
Costs
Costs to the respondents at 50% - the petitioner shall pay the respondents 50% of their costs
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Accordingly, the petition herein is dismissed in its entirety. Costs to the respondents at 50%.
The constitutional and statutory jurisdiction of the court cannot be removed and conferred to a tribunal or other quasi-judicial body.
The application of the word(s) may with regard to section 77(2) of the County Government Act makes the provisions non-mandatory.
The court finds no constitutional violations.
For the petitioner, To seek to be reinstated back to his previous position would amount to a request to revert to the secondment terms and effectively to the principal employer the TSC.
Issues in the judgment
#Internal inconsistency on the secondment letter date - the judgment refers to both 19th and 20th June 2014
Inconsistency between the petitioner's pleaded employment date and the court's finding of continuity - the petition states employment from 20th June 2017 while the court elsewhere describes the secondment as employment
Discrepancy in dates of the petitioner's appointment - '20th July, 2017' in submissions versus '20th June, 2017' elsewhere
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Paul Kimeto Cheruiyot v Governor Narok County & 3 others [2020] KEELRC 972 (KLR)", Case Analysis (2020). Petition No. 5 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/972/eng@2020-06-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.