Mchama v County Government of Mombasa & another; Kenya County Government Workers Union (Interested Party) (Cause E008 of 2024) [2024] KEELRC 2763 (KLR)
The bottom line
#A Mombasa county fireman lost his claim for promotion and acting allowances because he had no written appointment letters and skipped the proper dispute channels.
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 respondents unlawfully failed to promote the claimant
- 2.Whether the respondents unlawfully failed to pay the claimant's acting allowance
- 3.Whether the claimant is entitled to the prayers sought in the claim
Key legal issues
#Whether the respondents unlawfully failed to promote the claimant
The claimant failed to show that promotions were not based on merit and available vacancies; the respondents' evidence that he rose from job group F to H was unchallenged
Promotion in the county public service is the mandate of the 2nd respondent under Sections 59, 60, 63, 74 and 86 of the County Government Act, exercised on merit and with regard to vacancies under Regulation E.27 of the Public Service Code of Regulations. The claimant did not demonstrate that he met the threshold for promotion or that the progression through job groups was improper. The court will sparingly interfere in human resource functions absent constitutional breach, contractual breach or manifest unfairness.
Whether the respondents unlawfully failed to pay the claimant's acting allowance
No entitlement to acting allowances was established absent written appointment to an acting position by the authorised officer
The Fire Brigade Orders placing the claimant at the substation and later as station officer were not promotion letters and made no provision for an acting allowance. Under the defunct Municipality only the Town Clerk could issue promotion or acting appointment letters, and under the county government that role rests with the 2nd respondent. Delegation of duties without written communication creates no legitimate expectation of an acting allowance.
Whether the claimant is entitled to the declaratory orders and damages sought
Declaratory orders and general damages require proof of a rights violation, which was not made out
Declarations can only issue where the core issue - unlawful and unconstitutional breach of promotion and remuneration - is proved. Since the claimant failed to prove breach of the CBA or violation of constitutional rights, general damages do not accrue and the prayers fail. Further, the claim was an abuse of process having been amicably resolved through arbitration before the Minister, and the proper forum was the internal county mechanism with appeal to the Public Service Commission.
Legal principles established
#- Where a trade union is recognised and a CBA is registered in court, the CBA is a binding and enforceable document under Section 69 of the Labour Relations Act, but the party relying on it must produce it
- An employee cannot claim acting allowances without written communication appointing him to serve in an acting capacity; delegation of duties does not create such entitlement
- The court is not a first-instance forum for county government employees' promotion and allowance disputes; recourse lies with the County Public Service Board and appeal to the Public Service Commission under Section 77 of the County Governments Act
- The County Public Service Board has the exclusive mandate to make promotions in the county public service subject to merit and available vacancies
Court orders
#- 1.The claim is dismissed
- 2.Each party bears its own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 41 of the Constitution (unfair labour practices); employment of county government staff under the County Government Act
Relief refused
#Declarations of unfair labour practice, unlawfulness of acting appointments and non-payment of allowances; general damages; and payment of unpaid special duty allowances
The claimant did not prove that the respondents unlawfully failed to promote him or that there was a legitimate expectation to acting allowances; the CBA relied on was not produced; and the dispute ought to have been pursued through the county dispute-resolution mechanisms and the Public Service Commission, having already been amicably resolved through arbitration before the Minister
Costs
Each party bears its 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 claim is hereby dismissed. Each party bears its costs.
The court is not a first-instance forum for agitating the claimant's case in matters relating to county government employees' promotions and allowance payments.
Without a written letter of promotion to serve in an acting position, the claimant cannot justify a claim that the respondent failed to pay his acting allowances.
Declaratory orders can only be issued with proof of the core issue: that the respondents unlawfully and unconstitutionally breached the claimant's promotion and remuneration.
Having gone through arbitration before the Minister with an amicable outcome, these proceedings abuse the court process.
Issues in the judgment
#Internal date inconsistency: the memo on rationalization is dated 11 October 2020 but paragraph 8 says 'On 27 May 2023, the claimant was recommended for a promotion', while the chronology elsewhere places acting service from 2009 to 2022 and retirement in April 2022
Contradiction between the promotion chronology in the respondents' evidence and the claimant's retirement date: he is said to be in job group H in '2021, 2022, and 2023' although he retired on 28 April 2022
The title of the interested party is never expressly named; it is referred to only as 'the interested party'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mchama v County Government of Mombasa & another; Kenya County Government Workers Union (Interested Party) (Cause E008 of 2024) [2024] KEELRC 2763 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2763/eng@2024-11-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.