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ELRCDismissedNot stated in the judgment

Mchama v County Government of Mombasa & another; Kenya County Government Workers Union (Interested Party) (Cause E008 of 2024) [2024] KEELRC 2763 (KLR)

Employment and Labour Relations Court
11 November 2024
2,774 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The claimant, a former fireman employed by the defunct Municipal Council of Mombasa in 1997 and later an employee of the county government respondents, claimed that he was subjected to unfair labour practices. He relied on a CBA dated 9 April 2010 between the 1st respondent and the interested party (a union later removed from the proceedings), under which successful completion of professional training or appointment to an acting position entitled an employee to promotion, increments or an acting allowance. He alleged he served in acting positions as substation officer from 2009 and station officer from 2013 for over a decade without substantive appointment, confirmation or payment of acting and special duty allowances, and sought declarations, general damages and payment of the withheld allowances. The respondents denied liability, contending that promotion is governed by the scheme of service and the County Public Service Board's statutory mandate under Section 63 of the County Government Act, subject to merit and vacancies, that no acting appointment letters existed, and that the claimant had not exhausted the statutory dispute-resolution mechanisms. The court found that although a registered CBA is binding under Section 69 of the Labour Relations Act, the claimant did not produce it, especially after removing the union from the proceedings. He failed to prove unlawful failure to promote, since his progression from job group F to H was unchallenged, and no written acting appointment created a legitimate expectation of allowances. The court also held that county promotion and allowance disputes belong before the County Public Service Board with appeal to the Public Service Commission, and that a matter amicably resolved through arbitration before the Minister could not be relitigated. The claim was dismissed with each party bearing 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 respondents unlawfully failed to promote the claimant
  2. 2.Whether the respondents unlawfully failed to pay the claimant's acting allowance
  3. 3.Whether the claimant is entitled to the prayers sought in the claim

Key legal issues

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01

Whether the respondents unlawfully failed to promote the claimant

Holding

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

Reasoning

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.

p. 5
02

Whether the respondents unlawfully failed to pay the claimant's acting allowance

Holding

No entitlement to acting allowances was established absent written appointment to an acting position by the authorised officer

Reasoning

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.

p. 5
03

Whether the claimant is entitled to the declaratory orders and damages sought

Holding

Declaratory orders and general damages require proof of a rights violation, which was not made out

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 1.The claim is dismissed
  2. 2.Each party bears its 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
Article 41 of the Constitution (unfair labour practices); employment of county government staff under the County Government Act

Relief refused

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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

p. 6

Costs

Each party bears its 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.

Accordingly, the claim is hereby dismissed. Each party bears its costs.
p. 6Final orders - dismissal of claim and 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.
p. 6Exhaustion of statutory dispute-resolution mechanisms
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.
p. 5Acting allowances require written appointment
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.
p. 5Preconditions for declaratory relief
Having gone through arbitration before the Minister with an amicable outcome, these proceedings abuse the court process.
p. 6Abuse of process after amicable arbitration

Issues in the judgment

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minor

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

minor

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

minor

The title of the interested party is never expressly named; it is referred to only as 'the interested party'

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, "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.