REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT BUNGOMA

ELRC PETITION NO. 3 OF 2021

IN THE MATTER OF THE CONSTITUTION OF THE REPUBLIC OF KENYA

IN THE MATTER OF THE EMPLOYMENT AND LABOUR RELATIONS ACT

IN THE MATTER OF THE ALLEGED CONTRAVENTION OF RIGHTS OR BREACH OF

EMPLOYMENTRIGHT PER ARTICLE 10,41(2) (a) (b),3 (a) (f) ARTICLE  50, 22, 23,27

IN THE MATTER OF COUNTY GOVERNMENT ACT NO. 17 OF 2021

AND

IN THE MATTER OF THE COUNTY PUBLIC SERVICE BOARD

BETWEEN

HUSSEIN WANYAMA MULEBO.........................................................1^ST PETTIONER

JOHN NDAKUYA KUNDU.................................................................2^ND PEEITIONER

PASCAL WITNEY NYONGESA........................................................3^RD PETITIONER

MARY GORETTI NAFULA KISIANG’ANI .....................................4^TH PETITIONER

ROSELYNE NAFULA SICHURU.........................................................5^TH PETITIONER

ELIZABETH ETIANG OBUSURU...................................................... 6^TH PETITIONER

AND

THE COUNTY PUBLIC SERVICE BOARD.......................................1^ST RESPONDENT

COUNTY GOVERNMENT OF BUNGOMA........................................2^ND RESPODNENT

THE ATTORNEY GENERAL.................................................................3^RD RESPODNENT

JUDGMENT

1.  The Petitioners moved this court vide a Petition dated 21^st November 2017 seeking the following reliefs:-

(a) That a declaration order be issued that the decision by the 1^st Respondent to appoint the Petitioner vide letter dated 31^st October  2017  on a reduced salary is null and void the same  is in consistent with the law.

(b) That a declaration order issued that the terms of appointment of their letters dated 31^st of October 2017 be reviewed and the same have the same salary scale as previous contract.

(c) A declaration order be issued against the 1^st and 2^nd Respondent to absorb the Petitioners on permanent basis and on the same salary scale and terms as offered to all employees of County government in various cadre in Kenya.

(d) That the cost of the Petition be provided for.

2.  The 2^nd Respondent entered appearance and filed Memorandum of appearance through the law firm of Makokha Wattan’ga & Luyali Associates Advocates.

3.  On the 29^th June 2018 the Interested Parties and 2^nd Respondent filed consent enjoining the 1^st  to 14^th Applicants as Interested Parties.  The said parties having executed acceptance letters of offer of appointment from the 1^st and 2^nd Respondents be deemed to have accepted employment and not part of the petition.

4.  On the 2^nd November 2018  the Advocates for the 1^st to 14^th  interested parties J.B Otsiula  & Associates  filed Notice of withdraw of their Application dated 1^st February  2018.

5.  On the 7^th November  2018, the 1^st Respondent  entered appearance through the law firm of Nyikuli Shifwoka & Company Advocates  .

6.  The Petition is opposed. The 2^nd Respondent filed grounds of opposition dated 4^th February 2019 and a replying affidavit sworn by Chrisantus Wamalwa on the 26^th February 2019 and filed in court on the 17^th May 2019.

7.  The 1^st Respondent in opposition to the Petition filed Notice of Preliminary Objection dated 8^th September 2018 and filed in court on the 11^th March 2020. The 1^st Respondent further filed Replying Affidavit sworn by Elizabeth Wanyonyi on the 8^th September 2018 and filed in court on the 11^th March 2020.

8.  On the 4^th October  2021  the court gave directions for the petition to be canvassed by way of written submissions. On the 6^th December  2021  the court was informed the parties had not complied and extended time to file their submissions.   Time was further extended on the 20^th January  2022   for the 2^nd Respondent to comply.  On 9^th February 2022 all parties confirmed their filing of written submissions and the court issued a date for delivery of judgment.  Only the Petitioner  and 2^nd Respondent filed written submissions.

9.  The 1^st to 6^th Petitioners  state that:- “we are working as employees of County Government of Bungoma deployed in Health Department in various positions in different stations from 2015”and they bring the Petition on their behalf and on behalf of other 50 colleagues having been with them in various stations  they had been posted from the year  2015 and are affected by the  outcome. The court notes there was an application by 14 of the said persons who sought  to have their names excluded from the Petition.   The said application was later withdrawn.  In brief the petitioners, applying affidavit of 1^st Petitioner, allege that on the 4^th January 2016 they were employed as Clinical Officers  and other cadre of officers for the 2^nd Respondent after having been interviewed with the 1^st Respondent and posted to various stations ( CHWM-1” is copy of employment  letter dated  28^th December  2015 ).  That upon expiry of their contract in December 2016, the 1^st Respondent extended their   contract to September 2017 with a view to absorb them on permanent basis( annexture CHWM2).  That on the 17^th November  2017, they received letters indicating that their contracts had been renewed  on appointment effective  31^st  October  2017 with a consolidated package of Kshs. 25,000 for clinical officers (HWM3).  That further they were required to sign  the said  acceptance letters and return to the 1^st Respondent within 2 days  which they allege was not enough time for them to internalize  the terms of employment.

10.         That according to the Memorandum of Understanding (MoU) the County Government of Bungoma  had with PATH (Non- Government  Organization which  was funding their salary)  it was agreed that  payment should be done per Government scale and as per  their agreement ( copy of MoU marked HWM4).

11.         That the new terms are in breach of the MoU, the Constitution , Labour laws and Employment and County Government laws ( HWMS – the MOU). That the new contracts discriminate the Petitioners from employment and further denies them the opportunity to progress as employees of County Government in terms of promotions salary increment and security of tenure.  That from October they have never received any salary yet they are working for the 2^nd Respondent.

12.         The said Petitioners all swore  supporting affidavits similar to the above by the 1^st  Petitioner   save for positions and salary amount.  The subject matter of the dispute is the same.

1^st Respondent’s case

13.         The 1^st Respondent is  Bungoma County Public  Service Board.  The 1^st Respondent vide Notice of Preliminary Objection dated 8^th September 2018  raises  the following points of law:-

(a) That the court lacks jurisdiction to hear and or determine the Petition in view of provisions of Article  162 (2) (a) and 165 (5) (b) of the Constitution and Section 12 of the Industrial Court Act as well as Judicial  Precedent.  On this issue the point was dispensed  with by order of Justice Riechi transferring the Petition to this court on 11^th March  2020.

(b) The 2^nd point, the Petition and application herein are in view of Article 234 (2)  (i)  of the Constitution and Section 77 of the County Government Act, an abuse of the due and court process of law and ought to be struck out  and or dismissed with costs.

(c) On third point, that the Petition is bad in law for want of certainty existence and or capacity of the 1^st Respondent herein presented and consequently adversed comprising further on the jurisdiction of the court to proceed and determine the Petition and or said application and ought to be struck out and dismissed with cost.

(d) On 4^th ground, the said Petition and  Application are non starters, misconceived  defective in substance and improperly presented.

14.         On merit response  found in affidavit of Elizabeth  Wanyonyi, Secretary of 1^st Respondent sworn on the 8^th September 2018. She states that the Petition is filed in wrong forum in view of want of jurisdiction of this court, she avers that the MoU  filed in  court executed by the Chief Officer Health and Director of Department of Health , purportedly on behalf of the County Government  of Bungoma and PATH  representatives  cannot be enforced for want of substantive and procedural legality that the  1^st  respondent was not a party to nor involved in the negotiation and or processes leading thereto and cannot consequently be bound by the terms thereof on account of privity of contracts   that neither the Chief officer of Health  or Director Department of Health of the County  Government of Bungoma  are recognized officers to enter into contract for the county with third parties, that she is aware  of the fact that  APHIA PLUS   a development partner and implanting body of PATH  requested the 1st Respondent   to competitively source for suitable health workers including clinical  officers on their behalf  which they did.    The 1^st Respondent says the absorption of workers including the Petitioners engaged under the MOU were to be absorbed into the County payroll subject to availability of funds.

15.         That much later, on the lapse of the specified period of 12 months, the Chief  officer of Health wrote to the 1^st  Respondent  requesting for review and renewal of engagement of petitioners for a further  period of 12 months pending the Department of Health’s  sourcing funds. 

16.         That the 1^st Respondent , the mandated employer of County Government of Bungoma is still waiting for the Department of Health’s confirmation that funds  are available for engagement of the Petitioners for the contemplated period and or total  absorption and regularization of their employment to permanent and pensionable status.  That upon withdrawal of donor the 1^st Respondent as demonstrated by the Petitioners attempted to  offer the petitioners  employment at its  affordably sustainable rates which they have rejected.  That it is not possible   restore   the Petitioner’s salary  at    the rates previously enjoyed as at the time, their pay was funded by a donor, APHIA  PLUS   through  PATH   who has since ended  the project  and exhausted their funding  . That the 1^st  Respondent has no control, contribution or role in management of the County pay roll and treasury and cannot pay the Petitioner salaries claimed or engage them without  first a county Executive  Committee approval on the basis  of existent budget.

17.         The Petitioners are aware of the nature of their respective engagements and cannot claim that any of their rights have been violated.  That if there is a legitimate claim, the proper cause, would be to appeal to the Public Service Commission of Kenya as provided for under Article 23  (2) (i) of the Constitution and Sec. 77 of the County Governments  Act and or a cause  at the Employment and Labour Relations Court.  That the order sought if granted would comprise the principle of Separation of powers purview under  the Constitution  and comprise one independence  of the County Public Service Boards  across the Country  and contrary  to Public  Interest  as it is bound to promote inequitable salary scales and engagement avenues  within the County which is outright recipe for anarchy, dissatisfaction and disaster in service delivery.

18.         The 2^nd  Respondent’s  Case

The 2^nd Respondent, the County Government of Bungoma filed grounds of opposition and notice of preliminary objection dated 4^th February  2019, stating that the court has no jurisdiction, that the Petitioners have not followed  the due process in bringing the Petition before the court, the Petitioners are guilty of non- disclosure of material particulars  and hence do not deserve conservatory orders sought, the Petitioners cannot force the Respondents to employ them on terms outside  public Service which is contrary to Public Policy and interest.  The Respondents complied with the provisions of the Constitution to wit: They did not victimize petitioners, followed due process, afforded adequate and equal opportunity to the Petitioners through offering them contracts which they refused to execute, and that they adhered to professional ethics.

19.         On merit of the case, the 2^nd Respondent  filed affidavit sworn by Chrisantus  Wamalwa on the 26^th February  2018 who states he is the acting County Secretary and Head of Public Service of the County Government of Bungoma, and has authority of 2^nd Respondent to swear affidavit.  He avers that he is aware that the County Government of  Bungoma entered into MOU with PATH , a non- profit corporation and development  partner registered in Washington of United states of America for purposes of implementing the APHIA  plus project with Western Kenya.  That the MOU was to outline  the specific  name of the collaboration between the parties in respect to donor contracting  of Health workers for deployment to County Health facilities or project sites.  In paragraph  10, he outlines  the objectives of the MOU.  That the Petitioners were contracted by PATH as health workers of Bungoma County effective October 2015 subject to availability of funds under the donor project, that the Petitioners’  contracts were for one year  and expressly 30^th September  2017.   That the 2^nd Respondent never terminated the Petitioners’ contracts as they came to an end based on the appointment letters dated 30^th December 2016.    That   to cushion  the petitioners they were each given 1 year contract which they rejected to sign.  That signing of contracts was optional and  the Petitioners chose not to sign there is  no binding contracts between the parties.  The Petitioner’s were not paid for October  2017 since they chose not to sign the contracts  and could not be placed in payroll of the County Government .

20.         That  to pay the Petitioners  without contracts would be against Public  Policy and would attract  audit queries that cannot be explained by the  2^nd  Respondent.  The 2^nd Respondent avers that the Petitioners have not discharged   burden  of setting out  with reasonable degree  of precision, the constitutional provision said to be violated and demonstrated the manner in which they are alleged infringed. The  Petitioners are abusing court process as they have refused to sign employment contract.

DETERMINATION

Issues for determination.

22. The Petitioners in their submissions Identified the following issues for determination:-

(a) whether the court is seized   with jurisdiction to entertain the matter.

(b) whether the proper procedure was followed to lodge this suit

( c ) Whether  the Petition meets the threshold for the orders sought.

On the other hand the 2^nd Respondent identifies the following as the issues for determination

(a) Whether the Petition is competently before the Honouarble  court and whether   the Honourable court has jurisdiction to entertain the matter.

(b) Whether the Petitioners are entitled to the reliefs sought in the petition

(c) Who should pay the costs of the Application.

23. Having considered the case by the Petitioners and the Respondents and the issues identified by the Petitioner and 2^nd Respondent for determination, the court is of the considered opinion the issues placed before the court for determination by the parties are as follows:-

(a) Whether   the court has jurisdiction to entertain the Petition

(b) Whether the proper procedure was followed to lodge petition and whether the Petition is competent.

(c) Whether the Petitioners   are entitled to reliefs sought.

(d) Who should pay costs of the petition.

Whether the court has jurisdiction to entertain the Petition

  The 2^nd Respondent submits that  the court lacks jurisdiction to entertain the Petition a position also held by the 1^st Respondent. To buttress this position the 2^nd Respondent relies on the court of Appeal decision in the case of Owners  of  Motor Vessel “ Lillian S”  -vs- Caltex Oil ( Kenya) ltd  (1989) eKLR at  page  10 by saying:

“By jurisdiction is meant the authority which a court as to decide matters that are litigated before it or to take cognizance of matters presented in a formal way for its decision.  The limits of this authority are imposed by the statute, charter, or commission under which the court is constituted, and may be extended or restricted by the like means.  If no restriction or limit is imposed the jurisdiction is said  to be unlimited.  A limitation may be either as to the kind and nature of the actions and matters of which the particular court has cognizance, or as to the area over which the jurisdiction shall extend, or it may partake of both these characteristics.  If the jurisdiction of an inferior   court or tribunal ( including an arbitrator) depends  on the existence of a particular state of facts, the court or tribunal must inquire into the existence of the facts in order to decide whether it  has jurisdiction; but, except where the court or tribunal has been given power to determine conclusively whether the facts exist. Where a court takes it upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgement is given”.

(b) Section 74  of the County Government Act, gives the power  and authority to the County Public Service  Board  to regulate the engagement  of persons on contract, volunteer and casual workers, staff of joint ventures and attachment of interns it is Public Board and offices. 

(c)  Section 77 of the County government Act Provides as follows:-

“(1) Any person dissatisfied or affected by a decision made by the County Public Service Board or a person in exercise or purported exercise of disciplinary control against any County Public Officer may appeal to the Public Service Commission ( in this part referred to as the “Commission “) against the decision”.

(2) The Commission shall entertain appeals on any decision relating to employment of a person in a County Government including a decision in respect of:-

(a) Recruitment, selection, appointment and qualifications attached to any office;

(b) Remuneration and terms and conditions of service;

(c ) Disciplinary control;

(d ) National values and principles of governance, under  Article 10, and values and principles of Public Service  under Article  232 of the Constitution:

i.   Retirement  and other removal from service;

ii.  Pension benefits, gratuity and any other terminal benefits, or

iii. Any other decision the Commission considers to fall within its constitutional competence to hear and determine on appeal in that regard.

  (3)  An  appeal  under subsection ( 1)  shall be in writing and made within ninety days after the date of the decision, but the Commission may entertain an appeal later if, in the opinion of the Commission, the circumstances warrant it.
(4) The Commission shall not entertain an appeal more than once in respect to the same decision.

(5) Any person dissatisfied or affected by a decision made by the Commission on appeal in a decision made in a disciplinary case may apply for review  and the Commission may admit the application if:-

(a) The Commission is satisfied that there appear in the application new and material facts which might have affected its earlier decision, and if adequate  reasons for the non- disclosure  of such facts at an earlier date are given; or

 (b)  there is an error apparent on record of either decision.

(6) An application for  review  under subsection (5) shall be in writing  and made  within the  time prescribed by the Commission in regulations governing disciplinary proceedings, but the commission may entertain an application for review later if, in the opinion of the Commission, the circumstances warrant it”.

24.    Section 87 (2)  of the Public Service Commission Act provides as follows:-

“ A person shall not file any legal proceedings in any court of law with respect  to matters within the jurisdiction of the Commission to hear and determine appeal from County Government Public  Service unless the procedure provided for under this part has been exhausted”.

25.      The 2^nd Respondent submits, that based on the foregoing, the Respondent did not breach any law  and or provision of the Constitution but followed the law to the letter when they offered the Petitioners herein the contracts of employment.  That if the Petitioners  were not satisfied with the decision of the 1^st Respondent, they ought  to have appealed to the Public Service Commission within a period of ninety ( 90 )  days as per requirement of Section 77 of the County Government Act  and Section 87 (2) of the Public  Service Commission Act  and not rush to the Court seeking the orders herein.   That accordingly the court lacks jurisdiction to entertain the Petition as currently presented.   That Article 234 (2) (i) of the Constitution of Kenya 2010 mandates the Public Service  Commission the power and authority   to hear and determine appeals in respect of County  Governments Public Service.

26.     In response to this point of law the Petitioner submits that the matter was transferred to this court by the High court and the matter is before the proper court for determination and relies on the “Owners of Motor Vessel  “Lillian S”  case also cited by the Respondents and further on Supreme court in Samuel Kamau Macharia and Another -vs-  Kenya commercial Bank Ltd   and 2 others ( 20212) eKLR  that:-

  “ A  court’s  jurisdiction flows either from the constitution or  legislation or both thus a court of law can only exercise jurisdiction  as confirmed by constitution or other written law.  It cannot allocate to itself jurisdiction exceeding that much is conferred upon it by law.  Where a court takes upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing, jurisdiction must be acquired before Judgement is given”.

27. The Petitioner submits that they appreciate Article  234 (2)  (1)  of the constitution of Kenya as   read together  with Section 79 (2) (a) of  the County Government Act and Section 87 (2) of the Public Service Commission provided from the jurisdiction of appeal against the decision of the Public Service Board.  That however according to their facts the Respondents came up with a counter offer to the terms of the MoU that calls for the interpretation in line with the Constitution and principle governing contracts that falls within the purview of this court under Articles 16 2 (2) (2)   169 (5) (b) of the Constitution of Kenya 2010  read mutandis  . Section 12 of the Industrial Court Act  2011  Laws of Kenya.  That in the meaning of the said MoU  under Article  6, the Petitioners are the employees of the 1^st Respondent.   That  the Respondents have come up, with  nothing but a written offer to the Petitioner’s bargain under the MoU which the court needs to investigate  by interpreting the two documents in line with the provision of the Constitution  and see which one prevails in the circumstances.

28.      The Petitioner further submits that the Petition and the Notice of Motion presented was in the 1^st instant made to protect  the status quo given the short notice the petitioners were given to take up the offer by the Respondent.  That the appeal process before the Public Service Commission is long and tedious. The Public Service Commission (County Government Public Services) Appeals Procedure Regulations 2016 do not provide  for timelines to the Public Service Commission within which to conclude appeal emanating from the County Government. It also does not provide for interim relief pending determination of the appeal lodged with the Commission.  The effect of this is that the actions forcing the subject matter of appeals before the Commission could become entrenched and irreversible.

29.   The court having considered  the law  is of the opinion  that jurisdiction is everything and without it, then the court must down it’s tools and uphold the decision of the court of Appeal in Owners of the Motor Vessel “ Lillian S” cited by both parties and in particular the decision of Njarangi JA decision on jurisdiction.  The court also upholds the decision of the Supreme  Court in Samuel  Kamau Macharia  & Another case  cited above and in particular  that jurisdiction flows from the Constitution and or other written laws.   It is true the court has unlimited original jurisdiction in all employment and Labour disputes including Constitutional Petitions pursuant to Article 162 (2) of the Constitution of Kenya 2010. The same constitution under Article 234 (2) (i) grants the Public Service Commission the mandate  to her and determine appeals in respect of County Governments Public  Service.   This provision is implemented under Section 77 of the County Government Act as follows:-

“ (i) Any person dissatisfied or affected by a decision made by the County Public Service Board  or a person in exercise of purported exercise of disciplinary control against any County Public officer may appeal to the Public Service Commission against the decision”.

30.     Section 74 of the County Government Act gives the power and authority to the County Public Service Board to regulate the engagement of persons on contract, volunteer and casual workers, staff of joint ventures and attachment of interns to its Public bodies and offices.

31. The decision of the Respondents challenged in the instant case is the contracts offered to the petitioners on 31^st October   2017  which they allege offered consolidated salaries reduced to half from expired contracts  and with time line to sign acceptance letter within a short period of  2 days ( example annexture HWM3 under affidavit of Husseini Wanyama Malebo  1^st petitioner sworn on 21^st November  2017).    The court finds  that the impugned new contract is a decision within the meaning of Section 77 of the County Governments Act.  Section 87 of the Public  Service Commission Act  provides  as follows:-

“ A person shall not file any legal proceedings in any court of law with respect to matters within the jurisdiction of the Commission to hear and determine appeals for County Government Public Service unless the procedure provided for under this party has been exhausted”.

32. There is no evidence placed before the court that the Petitioners exhausted the procedures under Section 77 of County Government Act of filing appeal before the Public Service Commission. Indeed from the submissions by Petitioners submitting that there are no timelines of hearing at Public Service Commission it is clear they brought dispute to court directly.  The court finds the reasoning by Petitioners as to why they did not follow the laid down procedure of appealing against the decision of the Respondent to the Public Service Commission  to be speculative.

29.     The Court of Appeal  has pronounced itself on the provisions of Section 77 of the County Government Act in the case of Secretary County Public Service Board and Another -vs- Hulbhai Gedi Abdulla  ( 2017 )  eKLR  ( Malihndiary  Ouko  & Minoti JJA ) allowed the appeal on basis that the Respondent had failed to utilize  the process under Section 77 of the County Government  Act  as follows:- 

“There is no doubt that the Respondent initiated the Judicial review proceedings in matter disregard to dispute resolution mechanism availed under Section 77 of the Act”. The court of Appeal authority is binding on this court.

30.     On whether the new contracts amounted to a counter offer hence requiring interpretation of the court, the court finds what is in contention is the terms under the new contract which is a decision of the 1^st Respondent.   This court finds that it is the decision of the 1^st Respondent which is the substance of the instant petition which is an issue under jurisdiction of the Public Service Commission pursuant to Article 234  (2) (i) of the Constitution, Service public  Commission and Section  77 of the County Government  Act.  This is also demonstrated by the prayers sought. 

Consequently, as jurisdiction flows from the Constitution and the written law, the court finds the instant petition is premature the petitioners  having not exhausted remedy under Section 77 of the County Government Act.  The court finds  it has no jurisdiction and as a consequence downs its tools.

Whether the proper procedure  was followed to lodge Petition and whether the Petition is competent.

31.   The court has already found that instant Petition was filed without regard to the procedure under Section 77 of the County Government Act in challenge the decision of the 1^st Respondent.  The Instant Petition is thus incompetent.

32.     In conclusion the Petition dated 21^st November  2017 is incompetent for want of jurisdiction and is dismissed with costs to the 1^st and 2^nd Respondents. 

DATED, SIGNED  AND DELIVERED AT BUNGOMA THIS 31^ST DAY OF MARCH, 2022.

J. W KELI

JUDGE

In the presence of:-

Court Assistant : Wesonga Brenda

Petitioners: Absent

Respondents:-Absent