Kenya County Government Workers Union v Salaries and Remuneration Commission & 4 others (Cause E564 of 2023) [2024] KEELRC 2843 (KLR)
The bottom line
#Kenya's Employment Court ruled the SRC overstepped its mandate by dictating fixed salary options instead of advising on a county CBA.
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 advisories rendered by the Salaries and Remuneration Commission to the 2nd Respondent are consistent with its constitutional and statutory mandate
- 2.Whether the reliefs sought by the Claimant lie in law
Key legal issues
#Whether the SRC's advisories of 8th April 2022 and 19th April 2023 were consistent with its constitutional and statutory mandate
The advisories were unlawful; the SRC overstepped its mandate by setting rather than advising on remuneration, thereby violating the right to collective bargaining under Article 41(5)
The court held that by presenting only two fixed options for election, the SRC stifled further negotiation between the union and the county government. The Constitution limits the SRC's role to advising on remuneration, not setting or defining it. Advice must be rendered in a manner that preserves, not destroys, the constitutional right of employers and trade unions to bargain collectively. The advisories had the effect of setting the remuneration payable and were therefore ultra vires Article 230(4)(b).
Whether the SRC's failure to factor in cost of living, inflation and salary reviews vitiated its advisory
Yes; the SRC disregarded the cost of living adjustment and failed to consider all factors stipulated under the Constitution, the SRC Act and its Revised Guidelines on Collective Bargaining
The court noted evidence that some union members had earned the same salary for 10 years without review, a position not refuted by SRC. The 2023 Economic Survey showed a rise in the consumer price index from 6.1% in 2021 to 7.7% in 2022. Cost of living adjustment is a factor under the SRC Revised Guidelines, and productivity is a factor under Article 230(5) and Section 12 of the SRC Act, none of which were considered.
Whether the advisory was unlawful for being below the minimum wage in the Regulation of Wages (General) (Amendment) Order, 2022
No; the advisory of 8th April 2022 predated the 2022 Wage Order, which was not gazetted at the time; the applicable order was Legal Notice No. 2 of 2018
The court rejected this limb of the claim on temporal grounds: the 2022 Wage Order did not exist when the advisory was issued, so the advisory could not be measured against it.
Legal principles established
#- The SRC's role in collective bargaining in the public sector is advisory on remuneration, not setting remuneration; its advice must not negate or override the constitutional right of employers and trade unions to engage in collective bargaining
- Advisories that confine negotiating parties to electing between fixed options without latitude for further negotiation constitute setting rather than advising, and exceed the SRC's mandate under Article 230(4)(b) and Section 11 of the SRC Act
Court orders
#- 1.An order declaring the advisories by the 1st Respondent (SRC) as contained in the letters dated 8th April 2022 and 19th April 2023 unlawful in so far as the SRC overstepped its mandate under Article 230(4)(b) of the Constitution and violated the Claimant's and the 2nd Respondent's right to engage in collective bargaining under Article 41(5) of the Constitution
- 2.The 2nd Respondent ordered to resubmit the CBA negotiated with the Claimant for consideration by the SRC within 7 days from the date of the Judgment
- 3.Within 30 days upon submission of the CBA, the SRC is to render its advice as envisaged under Article 230(4)(b) of the Constitution taking into account the guiding principles under Article 230(5) of the Constitution, Section 12 of the Salaries and Remuneration Commission Act and its Revised Guidelines on Collective Bargaining in the Public Service
- 4.In default of the SRC complying with order (c), the Claimant and the 2nd Respondent shall be at liberty to present the CBA to Court for registration
- 5.Each party to bear their own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original jurisdiction under the Employment and Labour Relations Court Act over employment and labour relations disputes; claim premised on Articles 41(5) and 230(4)(b) of the Constitution
Relief refused
#Compulsory order compelling the 1st Respondent to issue a clearance letter enabling execution and registration of the CBA as negotiated (mandamus in the exact terms sought)
Instead of a compelled clearance letter, the court directed a resubmission of the CBA to SRC for fresh advice, with a default mechanism allowing registration if SRC fails to advise within 30 days
Costs
Each party to bear their own 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.
the advice by SRC should not negate or override the constitutional right of the employers and trade unions to engage in collective bargaining.
As crafted, the “advisories” did not constitute “advice” as envisaged under Article 230(4) (b) of the Constitution and Section 11 of the SRC Act.
An order is hereby issued declaring the advisories by the 1st Respondent (SRC) as contained in the letters dated 8th April 2022 and 19th April 2023, unlawful in so far as the SRC overstepped its mandate under Article 230(4) (b) of the Constitution and violated the Claimant’s and the 2nd Respondent’s right to engage in collective bargaining as guaranteed under Article 41(5) of the Constitution.
Within 30 days upon submission of the CBA, the SRC is to render its advice as envisaged under Article 230(4) (b) of the Constitution taking into account the guiding principles under Article 230(5) of the Constitution, Section 12 of the Salaries and Remuneration Commission Act and its Revised Guidelines on Collective Bargaining in the Public Service.
In default of the SRC complying with order (c) above, the Claimant and the 2nd Respondent shall be at liberty to present the CBA to Court for registration.
Issues in the judgment
#The judgment inconsistently cites the 1st Respondent's advisories as issued on '8th and 19th April 2022' when elsewhere they are dated 8th April 2022 and 19th April 2023, and the judgment itself flags this with '(sic)'
The existing CBA is inconsistently referred to as RCA No. 21 of 2013 and later as RCA No. 12 of 2013
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- County Government of Kirinyaga & another v Njagi (Employment and Labour Relations Appeal E034 of 2024) [2025] KEELRC 2428 (KLR)[2025] KEELRC 2428 (KLR)12 Sept 2025
Cite this brief
#Cite this brief
Caselaw, "Kenya County Government Workers Union v Salaries and Remuneration Commission & 4 others (Cause E564 of 2023) [2024] KEELRC 2843 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2843/eng@2024-11-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.