Philip Nyamu Waki, Roselyn Naliaka Nambuye, Patrick Omwenga Kiage
Murang’a County Public Service Board v Grace N Makori , Isaac Ngotho Maina & 175 others, Public Service Commission & Ministry of Health
Murang’a County Public Service Board v Grace N Makori & 178 others [2015 eKLR
Murang’a County Public Service Board Erred in Failing to Implement Agreements under the Economic Stimulus Programme (ESP)
Murang’a County Public Service Board v Grace N Makori & 3 others
Court of Appeal at Nyeri
Civil Appeal No 37 of 2015
PN Waki, RN Nambuye & PO Kiage JJA
23 December 2015
Reported by Phoebe Ida Ayaya
The two Respondents were health workers employed by the Government of Kenya on diverse dates between 2010 and 2013 under the Economic Stimulus Programme (ESP) who were later seconded to Murang’a County upon the advent of devolution. They were employed on three -year contracts that were later to be changed to permanent and pensionable terms and in tandem with regular public service employment. Their employment fell under three phases with those whose contracts expired in 2012 already absorbed into the public service on permanent and pensionable terms.
The two respondents stated that following the devolution of health services, the appellant had a duty to implement any agreements under the ESP and that indeed, the Cabinet Secretary for Health by a letter dated 24th January 2014, did advise all county governments, including the Murang’a County Government, to absorb all ESP health workers into regular public service employment on permanent and pensionable terms. Instead of absorbing the two respondents when their contracts expired around May 2014, the appellant extended their contracts for a further six months pending a review of their terms of employment, for which they were requested to submit their academic and professional certificates and await appointment letters, which the appellant promised to issue not later than 16th December 2014.
That date passed without any such letters and upon enquiring on 19th December 2014, the two respondents were informed by the appellant that their ESP contracts had been extended, on subsisting terms, for a further seven months, ostensibly because their remuneration on regular terms had not been budgeted for in that financial year. The appellant rejected a request to absorb the two respondents into regular employment.
That rejection prompted the two respondents to go into a go-slow in protest at what they viewed as discrimination. They also reported the matter to the County Labour Officer, who duly convened a conciliation meeting on 9th January 2015 that they attended, but the appellant snubbed. Moreover, the appellant commenced a recruitment process to replace the two respondents and locked them out of their work stations and also, in their contention, had some of them roughed up by “hired goons”. The two respondents concluded their petition by contending that having already worked for the appellant together with the Public Service Commission of Kenya (PSC) and the Ministry of Health (MOH), they had a legitimate expectation that they would be absorbed into regular employment of the appellant as promised.
i. Was the PSC’s communication an intrusion and encroachment on matters outside its jurisdiction and thus an impermissible and unlawful interference with and usurpation of the functional integrity of the appellant?
ii. Whether the court was right to declare that the two Respondents were entitled to be retained in the appellant’s employment on regular permanent and pensionable basis with effect from the date of lapsing of their 3-year contracts.
iii. What was the true nature of the two Respondents’ employment and whether they were seconded to the Appellant?
iv. Whether by being on contractual terms made the two Respondents any less appointees of the PSC
v. Whether the court failed to order the national Government to avail financial resources for the absorption of the two Respondents on permanent and pensionable terms
vi. Whether the court failed to appreciate the imperative of the budget cycle of the County Government
Devolution – devolution of health care services to county governments - Transfer of functions from National government to County governments –transfer of function or power of government at one level to another level of government –Constitution of Kenya 2010, article 189
Constitutional law – County Governments – public officers – appointment to public office – assigning positions of public officers to the county governments by the Public Service Commission –whether the Public Service Commission had jurisdiction to assign these positions- whether such an act complied with the letter and spirit of the County Governments Act and the Constitution – County Governments Act– article 187 Constitution of Kenya 2010
Constitutional law – recruitment and secondment of public officers - employment of public officers on secondment to the County Government – whether the absorption of the claimants to the County Government entitled them to permanent service of employment – whether public officers serving on contractual terms secondment should b absorbed as permanent and pensionable employees– Constitution of Kenya, 2010 articles
Constitution of Kenya, 2010
“Government at each level, and different governments at county levels, shall co-operate in the performance of functions and exercise of power and, for that purpose, may set up joint committees and joint authorities
A function or power of government at one level may be transferred to a government at the other level by agreement between the governments….
(2) If a function or power is transferred from a government at one level to a government at the other level –
(a) arrangements shall be put in place to ensure that the
resources necessary for the performance of the function or the
exercise of the power are transferred.”.
The National and County Governments related to each other on the basis of cooperation. It could not otherwise if the two levels of government were to function optimally and effectively to the benefit of Kenyans. Article 189(1) of the Constitution provided in mandatory terms that Governments at either level should perform its functions, and exercise its powers, in a manner that respected the functional and institutional integrity of government at the other level, and respects the constitutional status and institutions of government at the other level, and in the case of county governments, within the county level.
The whole tenor of Part 5 of Chapter Eleven of the Constitution that is titled Relationship between the National and County Governments within the larger rubric of devolved government as a constitutional pillar of governance was one of co-operation and consultation based on equality and mutual respect. This was consistent with article 6 of the Constitution that spoke of the two levels of government as being distinct and interdependent and commanded the said consultation and co-operation. The Government was also required at either level to liaise with government at the other level for the purpose of exchanging information, coordinating policies and administration and enhancing capacity.
They were also required to make every effort to settle any inter-governmental disputes through alternative dispute resolution mechanisms including negotiation, mediation and arbitration. The Inter-Governmental Relations Act, 2012, was enacted to establish the legal framework for consultation and co-operation between the national and county governments and amongst county governments.
Our constitutional architecture did not create, in the name of devolution, a wall of separation - high and impregnable - between national and county governments, with the latter being enclaves of insularity. Rather, it created a bridge - strong and vibrant - to ensure and encourage constant communication, consultation and co-operation within a diverse, devolved but united nation, between, amongst and within the levels of government.
The letters from the PSC were therefore merely communicating a pre-existing policy of the National Government that predated devolution. It was in no way a dictatorial imposition upon the appellant. Moreover, it was uncontested that the PSC did consult widely with the MOH and the Council of Governors on the absorption of the ESP workers on permanent and pensionable terms at the expiry of their contracts, and this was mutually agreed upon and in fact implemented by at least two thirds of the county governments. The appellant’s constitutional mandate was therefore not usurped or otherwise violated.
A national Government Policy having been accepted, adopted and implemented by itself with regard to the 1st batch of ESP workers; and by the Council of Governors, that the ESP workers were to be absorbed into permanent and pensionable terms at the expiry of their contracts, the appellant was bound to so absorb them. This flows logically from the need to treat the two respondents in an equal, equitable and non-discriminatory manner vis-à-vis their colleagues who were in the first batch of ESP workers and were already absorbed. Their expectation to be treated with equality was both legitimate and constitutional. There was no logical, lawful or reasonable basis upon which they could be excluded from the benefits of that policy of absorption. Courts of law were not to encourage parties to resile from their obligations freely entered into or lawfully inherited, to the detriment of innocent parties.
The appellant was in the know about not only the terms of employment of the two Respondents, but also of the prevailing policy that had been in place even before they were seconded to the appellant, that they would be absorbed on permanent and pensionable terms at the expiry of their contracts. If the appellant had been in the dark regarding that policy, the letter from the Cabinet Secretary, MOH, dated 24th January 2014, which was followed by reminders on 7th August and 18th November 2014, dispelled such darkness was dispelled by the letters admitted in court as evidence. There was on record a letter from the appellant dated 11th February 2014 by which it protested that the officers serving under contract terms were not employees of the PSC and that they were not therefore deemed to be seconded to it.
The Council of Governors who were the agents of the appellants was agreeable and moved to implement that policy. Thus, by the time the appellant was writing to the 1st and 2nd appellant on 6th October 2014 purporting to temporarily extend contracts which expired on 6th June 2014 for a period of six months pending review of your terms of service, it was being economical with the truth and it stands to reason that the absorption policy had already kicked in so that from the date of expiry of the contracts, the two respondents had already transited into the permanent and pensionable terms. It was not open to the appellant to purport to extend the contracts that had expired some five months previously.
There was no real variance between the Judge’s declaration that the petitioners were each entitled to be retained in employment of the appellant on regular permanent and pensionable basis with effect from the date of lapsing of their respective initial 3 years’ contractual terms of service and the that the appellant be compelled to reinstate all the ESP health workers on permanent and pensionable terms as directed by the Cabinet Secretary on 24th January 2014. That letter of 24th January 2014 quite simply and unequivocally provided that The National Treasury and Public Service Commission of Kenya were expected to approve their absorption once they completed their contract accordingly.
The Judge did not violate the principle of not granting what is not prayed in pegging the absorption date to the expiry of the two Respondents’ initial contracts, as that was the effective date communicated and, moreover, implemented for other ESP staff in earlier batches, and in the vast majority of counties.
According to the PSC and the MOH, they were employees, albeit on contract, and therefore properly seconded under section 138(1) of the County Governments Act. There were on record unequivocal letters of appointment for all the ESP workers from the PSC That they were on contractual terms did not make the two Respondents any less appointees of the PSC for purposes of being deemed to be on secondment to the appellant under section 138(1) of the County Governments Act. It was precisely in appreciation of the fact that public officers did serve in various terms of service that the officers on secondment were so seconded with their terms of service as at the date of constitution of the particular county governments. The two Respondents were properly seconded on contractual terms with a policy in place that they were to be converted to permanent and pensionable terms at the expiry of their contracts.
The National Government did not fail to avail financial resources for the absorption of the two Respondents on permanent and pensionable terms. This argument proceeded on an erroneous appreciation of the constitutional location of health services. The Fourth Schedule to the Constitution dealt with the distribution of functions between the National Government and the County Governments. It expressly placed health policy under the National Government. It listed County Health Services as a function of the County Governments. In the absence of any transfer agreement between the appellant and the National Government, health services remained an assigned function of the appellant and its criticism of the court was misconceived.
Even though the appellant did not provide evidence of the extent of the extra financial burden it would have to shoulder, throughout the proceedings it was never shown that the petitioners were paid out of funds other than the funds provided by the tax payers and budgeted for in the regular government budgets. The appellant was given about 3 months to put its house in order and comply with the order to retain the two Respondents on permanent and pensionable terms. A sober appreciation of the nature of disputes and a prudent caution ought to have led the appellant to make appropriate provision from as early as January 2014 when it was notified of the obligation to absorb the ESP workers on permanent and pensionable terms. The directions of the trial Court were within reason and lawful.
The judgment of the Court was sound in every respect and gave effect to a policy which respected and enforced the two Respondents right to full and equal enjoyment of their rights under articles 27 and 41 of Constitution, and in particular the right to fair labour practices and freedom from discriminatory terms of employment. In making reference to section 37(1) of the Employment Act, the Judge was simply emphasizing the compelling case for the absorption of the two Respondents on permanent and pensionable terms by drawing from the analogy of conversion from casual to permanent. In doing so he neither erred nor misapprehended the case before him.
Appeal dismissed with costs
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Owners of Motor Vessel “Lillian S” v Caltex Oil (K) Ltd  KLR 1 – (Mentioned)
Trojan & Co Ltd v Rm NN Nagappa Chettiar  AIR 235; 1953 (SCR) 780 – (Explained)
Vice-Chairman & Managing Director v R Varaprasad & others  LLR 707 – (Explained)
Constitution of Kenya, 2010 articles 6,27,41,43,187(2)(a); 230(2); 189(1); 234,(2)(i),(3)(b); 235; Fourth schedule – (Interpreted)
County Governments Act (Act No 17 of 2012) sections 6,15,59,138(1) – (Interpreted)
Employment Act (cap 226) sections 37,(1) – (Interpreted)
Inter-Governmental Relations Act, 2012 (Act No 2 of 2012) sections 19,20 – (Interpreted)
Public Finance Management Act (cap 412C) section 129(1) – (Interpreted)
Mr Mbugua for the Appellant
Mr Macharia for the 1st & 2nd Respondents
Mr Makori for the 3rd & 4th Respondents