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ELRCDismissedPetition dated 30.05.2023

Union of Kenya Civil Servants (UKCS) v Nairobi City County Government & 3 others; Office of the Deputy President, State Department of Devolution (Formerly Ministry of Devolution and the Asals) & another (Interested Parties) (Petition E096 of 2023) [2024] KEELRC 815 (KLR)

Employment and Labour Relations Court
8 April 2024
3,504 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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The Employment and Labour Relations Court dismissed a union bid to have 124 former Nairobi Metropolitan Services workers absorbed into permanent county jobs.

What this practically means

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Executive summary

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The petitioner, a trade union acting for 124 former workers of the defunct Nairobi Metropolitan Services (NMS), petitioned for declarations that its members are lawful employees of Nairobi City County Government on permanent and pensionable terms, certiorari to quash a County Assembly sectoral report and related recruitment documents, injunctions, conservatory orders and mandamus compelling implementation of PSC circulars translating the members' terms from contract to permanent and pensionable. The respondents opposed, arguing the petition failed the Anarita Karimi Njeru threshold, that the petitioner lacked privity to the Handover Framework, that the matter was premature for failure to exhaust the dispute resolution mechanisms under the Intergovernmental Relations Act, and that the recruitment of the members by the national government was ultra vires the Deed of Transfer. The 1st Interested Party (Attorney General) sought removal from the proceedings; the 2nd Interested Party (Public Service Commission), the actual employer, filed nothing and faced no claims. The court found the recruitment of Compliance and Enforcement Officers by the national government ultra vires the Deed of Transfer dated 25.02.2020 and unconstitutional, as it bypassed the County Public Service Board. It held the PSC circulars did not apply to county public service and created no legitimate expectation. The court concluded no constitutional violation against the respondents was established and dismissed the petition in its entirety, with each party to bear its own costs.

Questions the Court framed

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

  1. 1.Whether the recruitment of the Compliance and Enforcement Officers by the 2nd Interested Party for the National Government (under which NMS was a Department) was ultra vires the Deed of Transfer dated 25.02.2020
  2. 2.Whether the Interested Parties unilaterally and illegally recruited and appointed the petitioner's members to perform Security and Compliance functions for the county, contrary to the constitutional division of functions between national and county governments
  3. 3.Whether the PSC circulars relied upon operated to confer absorption of the Union Members into permanent and pensionable terms of service with the 1st and 3rd Respondents
  4. 4.Whether the petitioner established actual or threatened breach of the Bill of Rights, in particular Article 41, as against the respondents

Key legal issues

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01

Legality of the recruitment of the Union Members by NMS/2nd Interested Party

Holding

The recruitment was ultra vires the Deed of Transfer dated 25.02.2020 and unprocedural and illegal as inconsistent with the constitutional provisions and the Deed

Reasoning

Article 187 governs transfer of functions between national and county governments. The Deed of Transfer transferred health, transport, planning and public works functions but not Compliance and Enforcement. Articles 5.6 and 5.7 required staff to be seconded from the County Government with the County Public Service Board formulating instruments for secondment in consultation with the PSC. The Union Members were not drawn from the existing County Security and Compliance Department and the 3rd Respondent was not involved, having protested by letters dated 16.06.2021 and 27.01.2022.

p. 6
02

Application of the PSC circulars to the Union Members

Holding

The circulars did not apply and could not confer absorption of the Union Members into permanent and pensionable county service

Reasoning

The circulars were issued by the Public Service Commission to its own authorised officers, and the Commission's constitutional powers and functions exclude the public service of county governments under Article 234(3)(b). Further, the employment itself was found to be outside the Deed of Transfer and unconstitutional, and the members had no basis for a legitimate expectation to be absorbed.

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Whether constitutional violations of Articles 27, 41 and 47 were established against the respondents

Holding

No actual or threatened violation of the Bill of Rights was established and the petition failed

Reasoning

The petitioner and its members were not privy to the Framework for Handover agreement and could not enforce it; the members were not valid employees under the Deed of Transfer; and the petitioner chose to name the PSC (the actual employer) only as an interested party with no claims or prayers against it, rather than pursue it for absorption into national government service.

p. 8

Legal principles established

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  • A county government is responsible for establishing offices in its public service and appointing persons to those offices, and the powers of the Public Service Commission do not extend to offices in the service of a county government
  • Recruitment of staff to perform county government functions must conform to the terms of the Deed of Transfer and Articles 5.6 and 5.7 thereof, requiring secondment from the County Government with the County Public Service Board's involvement

Court orders

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  1. 1.The petition is dismissed
  2. 2.Each party to bear own costs

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Articles 41, 27 and 47 of the Constitution of Kenya, 2010 (fair labour practices and Bill of Rights enforcement in the employment and labour relations jurisdiction)

Relief refused

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All declaratory, certiorari, injunction, conservatory and mandamus orders sought in the petition dated 30.05.2023

The recruitment of the Union Members was ultra vires the Deed of Transfer; the circulars did not apply to county government public service; no legitimate expectation arose; and no constitutional violation was established against the respondents

p. 8

Costs

Each party to bear own costs

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 Court returns that the recruitment of Compliance and Enforcement Oficers by the 2nd interested party for the 1st interested party under which the Nairobi Metropolitan Services was a Department was ultra vires the Deed of Transfer of powers and functions dated 25.02.2020.
p. 6Ultra vires recruitment under the Deed of Transfer
In conclusion the petition is hereby dismissed with orders each party to bear own costs.
p. 8Disposition and costs
The Court finds that in the circumstances, infringement of the legal and constitutional rights as guaranteed under Articles 27 and 47 as against the respondents has not been established at all.
p. 8No established constitutional violation
As submitted for the 1s, 2nd and 3rd respondents, the members of the union in issue had no basis to evolve a legitimate expectation based on the circulars to be absorbed and emplaced in the permanent and pensionable service of the 1st and 3rd respondents.
No legitimate expectation from PSC circulars

Issues in the judgment

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minor

Internal inconsistency in dates: the petition prays over Circular Ref No. PSC/ADM/13/(13) dated 13th April 2021 while the judgment records the same circular as dated 14.04.2021

minor

Typographical error in the prayer referring to the sectoral report laid on the table on 'Tuesday, 11th April 2013' whereas the pleaded event is 11th April 2023

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, "Union of Kenya Civil Servants (UKCS) v Nairobi City County Government & 3 others; Office of the Deputy President, State Department of Devolution (Formerly Ministry of Devolution and the Asals) & another (Interested Parties) (Petition E096 of 2023) [2024] KEELRC 815 (KLR)", Case Analysis (2024). Petition dated 30.05.2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/815/eng@2024-04-08

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