[2025] KEELRC 1450 (KLR)

Kenya Union of Pre-Primary Education Teachers v Salaries and Remuneration Commission & 4 others (Petition E008 of 2024) [2025] KEELRC 1450 (KLR) (22 May 2025) (Judgment)

Neutral citation: [2025] KEELRC 1450 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Nyeri

Petition E008 of 2024

ON Makau, J

May 22, 2025

Between

Kenya Union of Pre-Primary Education Teachers

Petitioner

and

Salaries and Remuneration Commission

1st Respondent

Murang’a County Public Service Board

2nd Respondent

Murang’a County Assembly

3rd Respondent

Public Service Commission

4th Respondent

Hon.Attorney General

5th Respondent

Judgment

Introduction 1. By a petition dated 10th June 2024, the petitioner sought the following orders against the respondentsa.That this honourable court do declare that the Salaries and Remuneration Commission has failed to exercise its mandate to enforce its advisory on remuneration of the ECDE teachers as required by law.b.That a declaration be issued that Murang’a County Assembly is responsible for the injury suffered by the ECDE teachers of poor remuneration as it has failed in its mandate to oversight the employer.c.That Murang’a County Public Service Board has violated the ECDE teachers’ right to fair remuneration.d.That the 1st, 2nd and the 3rd Respondents share collective responsibility for the violations and injury the ECDE teachers in Murang’a have suffered.e.That the County Public Service Board be compelled to pay the ECDE teachers in its employ, the salaries and allowances as advised by the Salaries and Renumeration Commission guided by the circular dated 10th August 2023. For avoidance of doubt, the salary difference be paid to the teachers with effect from 1st July 2023 to date and the appropriate salaries be paid going forward.f.That the ECDE teachers be subjected to the applicable Schemes of Service.g.That cost of this Petition be provided for by the Respondents.h.The costs of and incidental to this petition.

2. The petition was supported by an Affidavit sworn on 10th June 2024 by Mr.Samuel A.Opiyo and it was opposed by the 1st and 2nd respondent vide Grounds of Opposition dated 15th July 2024 and 25th November 2024. The rest of the respondents did not file any response to the petition. The petition was disposed of by written submissions.

Facts of the case 3. The petitioner is a trade union registered to represent Early Childhood Education (ECDE) Teachers and brings this petition under Article 22 of the Constitution of Kenya, 2010. 1st, 2nd and 3rd respondents are Public entities while the 4th respondent is Chief Legal advisor to the Government of Kenya.

4. The petitioner’s case was that the 1st respondent issued an Advisory to all County Governments detailing the remuneration (Basic salary and allowances) payable to the public officers working in the County Governments. The advisory was conveyed under the cover letter dated 10th August 2023 REF:SRC/TS/29 (81) but the 2nd respondent has wilfully failed to implement the advisory and continues to pay the ECDE teachers’ lower salaries than what was advised by the 1st respondent.

5. The petitioner averred that the failure to pay the ECDE teachers as advised by the 1st respondent amounts to discrimination and breach to their right to fair remuneration since other employees of the 2nd respondent with corresponding academic qualification are paid much high salaries than the ECDE teachers. The petitioner averred that the advisory on remuneration by the 1st respondent is building on all public organs and it cannot be ignored.

6. The petitioner faulted the respondents for failure to exercise their legal mandate to ensure that the ECDE teachers are paid according to the 1st respondent’s advisory. It faulted the 4th respondent for failure to determine an appeal filed to challenge the decision by the 2nd respondent to pay the ECDE teachers as per the 1st respondent’s advice.

7. It is further petitioner’s case that section 38 (2) of the Early Childhood Development Education Act, 2021 provides that a County government shall pay ECDE teachers employed in public education centres within the County remuneration as shall be determined in consultation with the SRC.

8. It further averred that under section 13(1) (d) of the Salaries and Remuneration Commission Act, the 1st respondent is mandated to bring about harmonization of salaries and remuneration in the public sector while ensuring that equity and fairness is achieved.

9. The petitioner averred that Regulation 21 of the SRC (salaries and Benefits for Public officers) Regulations provides that the advice of the Commission in relation to the remuneration and benefits of all other public officers will hold and only be varied within the provision of Article 259 (ii) of the Constitution.

10. In view of the foregoing matters, the petitioner maintained that the reliefs sought are merited since the respondents have failed to perform their legal mandate. The petitioner maintained that the 2nd respondent has violated the rights to fair labour practices for the ECDE teachers contrary to Article 41 of the Constitution by paying them below the salaries and benefits advised by the 1st respondent.

11. The above facts were not contested by affidavits but the 1st and 2nd respondent raised grounds of opposition. The 1st respondents contended that: -a.That the 1st Respondent is a Constitutional Commission established under Article 230 of the Constitution, operationalized by the Salaries and Remuneration Commission Act and whose mandate is to, inter alia: -i.Set and regularly review the remuneration and benefits of all State officers;andii.Advise the national and county governments on the remuneration and benefits of all other public officers.b.That the 1st Respondent has, pursuant to its mandate under Article 230 (4) (b) of the Constitution, advised county governments on the remuneration and benefits for ECDE Teachers vide letter Ref No:SRC/TS/29(81) dated 10th August, 2023. The 1st Respondent’s advice appears in the Petitioner’s annexure marked as “A2” in the Supporting Affidavit of Samuel A.Opiyo dated 10th June, 2024. c.That as held by the Court of Appeal, the 1st Respondent’s advice issued under Article 230 (4) (b) of the Constitution is mandatory and binding and the 1st Respondent’s advice on the remuneration and benefits for ECDE Teachers is therefore binding on all county governments.d.That the Petitioner has omitted to frame its case with precision as required under the High Court’s pronouncement in the case of Anarita Karimi Njeru v The Republic (1976-1980) KLR 1272. The petition fails the requirement as it does not state the alleged constitutional provisions violated by the 1st Respondent and the acts or omissions complained of with reasonable precision.e.That it is trite law that he who avers must prove. The petitioner has not discharged the evidentiary burden of proving that the 1st Respondent has acted in breach of the Constitution or any law.f.That the petition discloses no reasonable cause of action against the 1st Respondent.g.That the petition is scandalous, frivolous, and vexatious and abuse of the Court’s process.h.That the petition has no merit and should therefore be dismissed with costs to the 1st respondent.

12. The 2nd respondent contended that: -a.The petition violated the binding advice of the Salaries and Remuneration Commission (“SRC”) which via its letter Ref:No.SRC/TS/29(81) DATED 10TH August, 2023, advised the petitioner and 2nd respondent to implement the salary structure for unionizable members (ECDE Teachers) of the petitioner through the Collective Bargaining Negotiations Process (“CBA”).b.The petition is premature and violated the decision of the Court of Appeal in Salaries and Remuneration Commission v National Hospital Insurance Fund, Management Board & 2 others (Civil Appeal 156 of 2016) (2024) KECA 419 (KLR) (26th April, 2024) (Judgment) on the binding nature of advice of SRC on matters relating to the remuneration and benefits of public officers i.e. ECDE Teachers.c.The petition is untimely and circumvented Article 41(50 of the Constitution 2010 which enshrines that, “Every trade union, employers’ organisation and employer has the right to engage in collective bargaining.”d.The petition is inopportune as it bypassed the mandatory legislative provisions of the Labour Relation Act, 2007, which obligated the petitioner to firstly enter into a Recognition Agreement with the 2nd respondent, and thereafter, initiate the process of CBA with the 2nd respondent so as to bring into effect the mandatory advice of SRC (supra).e.The petition violated the doctrine of exhaustion of remedies as stipulated by Article 159 (2) (d) of the Constitution 2010, and Labor Relations Act, 2007. f.Whereas the petitioner claims that Murang’a ECDE teachers are its unionisable members, it has never approached the 2nd respondent on the matters its is now agitating via the premature petition, despite the elaborate provisions of; Article 41(5) of the Constitution, Labour Relations Act, 2007, and mandatory advise of SRC on how to implement the remuneration and benefits of ECDE teachers.

Submissions 13. It was submitted for the petitioner that the payment of salaries and benefits to the ECDE teachers below the amounts advised by the 1st respondents under the circular dated 10th August 2023 amounts to denial of their rights to fair remuneration and discrimination by the 2nd respondent contrary to Article 27 and 41 of the Constitution.

14. It was submitted that the 2nd respondent is bound by the 1st respondent’s advice on salary and remuneration of public officers. It was argued that the 1st respondent has power to force the 2nd respondent to pay the correct salaries but it has failed to do so.

15. As regards the 3rd respondent, it was reiterated that it has failed to exercise its oversight role to ensure that the issue of underpayment of ECDE teachers is resolved. Likewise, the 4th respondent was faulted for its failure to exercise its appellate jurisdiction to determine appeals against the decision by the 2nd respondent failure to pay the salary advised by the 1st respondent.

16. To fortify the above submissions, reliance was placed on Salaries and Remuneration Commission v National Hospital Insurance Fund Management Board & 2 others (2024) KECA 419 (KLR) where the Court of Appeal discussed in details the role of the SRC and the obligatory and binding nature of its advice on salaries and remuneration in the public sector.

17. On the other hand, it was submitted for the 1st respondent that it issued its advice on the remuneration and benefits for ECDE teachers vide the letter Ref No:SRC/TS/29 (81) of 10th August 2023. It was further submitted that the said advice is mandatory and binding on all county governments including Murang’a County.

18. For emphasis, reliance was placed on the Court of Appeal decision in the case of Salaries and Remuneration Commission v National Hospital Insurance Fund Management Board & 2 others (2024) KECA 419 (KLR), and Teachers Service Commission (TSC) v Kenya Union of Techers (KNUT) and 3 others (2015) eKLR and the Supreme Court decision in Muthuuri & 4 others v National police service Commission & 2 others (2023) KESC 52 (KLR).

19. It was further submitted that the petitioner has not discharged the burden of prove that the 1st respondent breached the constitution. It was argued that the petitioner has not adduced any documentary evidence or at all, to prove that the 1st respondent violated the Constitution.

20. It was further argued that section 13 of the SRC Act, cited by the petitioner, does not impose a mandatory duty on the 1st respondent to litigate against the National and County governments to enforce compliance with its advice on remuneration and benefits. Consequently, the court was urged to find that the 1st respondent discharged its constitutional mandate by providing a binding advice to county governments regarding the remuneration of ECDE teachers and proceed to dismiss the petition with costs.

21. As regards the 2nd Respondent, it was submitted that the advice by the SRC was to be implemented through collective bargaining process but the petitioner rushed to court before contacting the 2nd respondent to schedule and commence negotiations as advised by the SRC. That the said collective bargaining was to be done in accordance with the Constitution and the Labor Relations Act. Further that a party could only go to court if negotiation failed.

22. It was further submitted that, it is the petitioner who has violated the advice by the SRC by failing to engage in collective bargaining and rushed to file this petition. As such it was submitted that the petition is premature and it violates the doctrine of exhaustion and the principle of constitutional avoidance.

23. Reliance was placed on Wahome v Public Health Officers & Technical Council & Another (2023) KEHC 2680 (KLR), Geoffrey Muthinja & Another v Samuel Muguna & 6 others (2015) eKLR and Communication Commission of Kenya & 5 others v Royal Media Services Ltd & 5 others (2024) eKLR to urge the court strike out the petition to enable the petitioner to comply with SRC’s advice to pursue implementation of salary structure of Murang’a ECDE Teachers through collective bargaining.

24. As regards the 4th respondent, it was submitted that in view of section 59(1) (5) of the County Government Act it is only after the County Public Service Board has made recommendations to the SRC, on behalf of the County government, on the remuneration, pension and gratuities for the County Public Service employees that SRC can invoke its advisory powers under Article 230(4) of the Constitution. That SRC cannot, on its own motion, come up with recommendation on remunerations and benefits of County Public officers without receiving and considering the recommendations from the County Public Service Boards.

25. Reliance was placed on County Public Service Boards National Consultative Forum & 47 others v Salaries and Remuneration Commission (2024) KEELRC 13557 (KLR), and Kenya County Government Workers Union v Salaries and Remuneration Commission & 4 others (2024) KEELRC 2843 (KLR) where it was held that, while exercising the advisory powers, the SRC must do so in a manner that does not destroy the right of the trade union and the employer to engage in collective bargaining. That the said role is advisory and SRC has exercised the same without usurping the mandate of other public entities and constitutional commissions.

26. On whether the advice by the SRC is binding, it was submitted that it is not unless the same is specifically provided for, in the constitution or the law. Reliance was placed on Kenya Vision 2020 Delivery Board v Commission on Administrative Justice & 2 others (2021) KESC 35 (KLR).

27. In view of the foregoing, the court was urged that: -a.SRC has to exercise its advisory role strictly in accordance with Article 230(4)(b) of the Constitution and the applicable law without negating or overriding the constitutional right of the employers and trade unions to engage in collective bargaining.b.In respect of county public service employees, the advisory of SRC must be issued strictly in accordance with Article 230(4)(b) of the Constitution as read with section 59(1)(j) of the County Governments’ Act;c.For SRC’s advisory issued vide Circular Ref No.SRC/TS/29 (81) of 10th August, 2023 to be given effect and lawfully implemented, the same must comply with the judgment of Hon.Stella Rutto, J in the case of Kenya County Government Workers Union v Salaries and Remuneration Commission & 4 others (Cause E564 of 2023) (2024) KEELRC 2843 (KLR) (15 November 2024) (Judgment); andd.For the advisory of SRC to have the force of law, it must be issued strictly in accordance with Article 230 (4)(b) of the Constitution and as guided by the Supreme Court and the Employment and Labour Relations Court in the cited decided cases.

Determination 28. I have considered the pleading, evidence and submissions filed. There is no dispute that vide letter dated 10th August 2023, the 1st respondent advised on the review of remuneration and allowances for Public Officers (non-State officers) in the County Governments. It is also not in dispute that the 2nd respondent did not implement the said advice on the ECDE teachers and instead continued to pay them a special salary which was below the amounts advised by the 1st respondent.

29. The issues for determination are: -a.Whether the suit is premature.b.Whether the said advice by the SRC on remuneration and benefits of County Government employees is mandatory and binding.c.Whether the respondents violated Article 27 and 41 of the Constitution by failing to implement the SRC advice dated 10th August 2023 on the ECDE teachers.d.What appropriate orders should be made.

Premature suit 30. This issue was raised by the 2nd respondent vide the Notice of Preliminary Objection dated 30th July 2024 which was dismissed on 2nd October 2024 for want of prosecution. The 2nd respondent purported to repeat the same objection under a new title of Grounds of Opposition. The court will not allow the 2nd respondent to have a second bite at the cherry.

31. Even if the court was to consider the said issue on the merits, the same is obviously baseless since there is evidence that the petitioner filed appeal before the 4th respondent against the 2nd respondent’s decision not to implement the advice by the 1st respondent dated 10th August 2023 as required under section 77 of the County Government Act, but the 4th respondent declined jurisdiction to determine the appeal.

32. Consequently, I find and hold that the suit herein is properly before the court. In fact, going by the number of decisions of the various courts cited in the submissions filed herein, it is evident that similar disputes have been litigated by the respondents in courts of law.

33. Finally, on this issue, I have noted from the onset that the petitioner has approached the court under Article 22 of the Constitution to agitate for rights of a group/class of persons with a common interest. Article 22(1) & (2) a-d of the Constitution, 2010 provides that: -“22(1).Every person has the right to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened.(2)In addition to a person acting in their own interest, court proceedings under clause (1) may be instituted by-a.a person acting on behalf of another person who cannot act in their own name;b.a person acting as a member of, or in the interest of, a group or class of persons;c.a person acting in the public interest; ord.an association acting in the interest of one or more of its members.”

34. It has not pleaded that the petitioner has any recognition agreement or Collective Bargaining Agreement (CBA) with the respondents. Therefore, I find that the petitioner has the locus standi to bring the suit under Article 22 of the Constitution and the petition is properly before the court. The 2nd respondent has admitted that the petitioner has never approached it for recognition and collective bargaining.

Whether advice by SRC is mandatory and binding 35. I will not belabour this point since the Court of Appeal has already decided on whether or not advice by SRC on remuneration and benefits of Public officers is binding. In Salaries and Remuneration Commission v National Hospital Insurance Fund Management Board & 2 others, supra the Court of Appeal held that: -“56. It is clear that the Collective Bargaining process was pheripheral and the learned Judge was clear in his mind that any advice SRC gave could be taken or declined as the same was not binding on the SRC. (sic)The giving of advice on remuneration was one of the reasons the SRC was created by the Constitution, 2010. The role of SRC is not cosmetic; it is mandatory. It is not only mandatory, it is to be sought and obtained prior to taking any action that requires that advice. And that advice is binding as per the requirements of Article 259 (ii) of the Constitution…”

36. I am bound by the above decision on the matter of the binding effect of the SRC’s advice on remuneration and benefits of public officers provided that the exercise of that role was in accordance with Article 230 (4) (b) of the Constitution and the statutes.

37. However, in Muthuuri & 4 others v Attorney General & 2 others, supra, the Supreme Court clarified that: -“Whereas Article 230(4)(b) integrated SRC in the determination of matters relating to remuneration and benefits of public officers, this provision must be read alongside other provisions of the Constitution which confer power to some of the Chapter fifteen commissions to review and make recommendations on the conditions of service of public officers under them. For instance, Article 234(2)(g) empowers the public service commission (PSC) to “review and make recommendations to the national government in respect of conditions of service, code of conduct and qualifications of officers in the public service with the exception of State Officers…”

38. In County Public Service Boards National Consultative Forum & 47 others v Salaries and Remuneration Commission, and Kenya County Government Workers Union v SRC, supra, this court was firm that SRC may not exercise its advisory role under Article 230 of the Constitution suo moto without first receiving and considering the recommendations from the County Public Service Boards under section 59(1)(j) of the County Government Act. There is however no evidence adduced by the respondents to prove that the SRC made the advice dated 10th August 2023 without complying with the law or considering the views from the stakeholders. Consequently, I am satisfied that the advice was made in accordance with Article 230(4) (b) of the Constitution.

Whether the respondents have violated any constitutional rights of the ECDE teachers employed by the 2nd respondent 39. The petitioner averred that the respondents have violated the rights of the ECDE teachers by failing to implement the SRC advice on Remuneration and Benefits on the ECDE teachers employed by the 2nd respondent. The respondents have denied that allegation.

40. I have already established that the advice by SRC on remuneration and benefits of public officers is mandatory and binding. In this case, the SRC issued a circular dated 10th August, 2023 for the public officers in all the county governments. In Implementation Note Number 7, the SRC advised that: -“7. Early Childhood Development Education (ECDE) teachers to be placed within the remuneration structure advised herein.”

41. There is no denial that the 2nd respondent has failed to implement the SRC advice on its ECDE teachers despite the foregoing express implementation note. As a result, the ECDE teachers continue to receive a “special salary” that is below the amounts advised by the SRC. Consequently, I am satisfied that the 2nd respondent has violated its ECDE teachers’ right to fair remuneration as provided under Article 41(2) of the Constitution.

42. I further find that failure to place the said ECDE teachers within the remuneration structure as advised by the SRC amounted to treating them different from other employees of the same county government. Such differential treatment was unjustified and it amounted to discrimination within the meaning of Article 27 of the Constitution and section 5 of the Employment Act, 2007.

43. The 2nd respondent contended that the petitioner ought to have sought implementation through collective bargaining. However, that contention lacks merits since the 2nd respondent did not adduce evidence to prove that it has a recognition agreement and CBA with the petitioner.

44. However, I don’t see how the rest of the respondents are to held liable for the failure to implement the said SRC advise on the ECDE teachers. The 1st respondent played its legal role by issuing the advice. The 3rd respondent can only play the role of appropriating funds if a budget is tabled before the Assembly.

Reliefs 45. In view of the matters discussed above, I find that the petitioner has only proved its case against the 2nd respondent on a balance of probability. Consequently, I award the petitioner declaration that 2nd respondent has violated the right to fair remuneration of its ECDE teachers by failing to implement the advice on their remuneration as advised vide Circular Ref No:SRC/TS/29 (81) dated 10th August 2023.

46. In addition, I order the 2nd respondent to pay its ECDE teachers the salaries and allowances as advised by SRC in the circular dated 10th August 2023, with effect from the 1st July 2023 or when the teachers were appointed, if the appointment occurred after 18th July 2023.

Conclusion 47. I have found that the petition before the court is not premature. I have further found that the advice on remuneration and benefits of public officers by the SRC is mandatory and binding unless otherwise provided by the law. I have further found that the 2nd respondent has violated the rights to fair remuneration of its ECDE teachers by failing to implement SRC’s advice on remuneration and benefits dated 10th August 2023 on them, as directed under implementation Note 7.

48. For the foregoing reasons, I enter judgment for the petitioner against the 2nd respondent as follows:a.A declaration that the 2nd Respondent has violated its ECDE teachers’ right to fair remuneration.b.The 2nd Respondent is ordered and directed to pay its ECDE teachers the salaries and allowances as advised by the SRC vide the circular dated 10th August, 2023 with effect from 1st July, 2023 or when the teachers were employed if the appointment came after the effective date.c.The petition against the rest of the respondents is dismissed.d.Since the petition is a public litigation, I award no costs.

DATED, SIGNED AND DELIVERED AT NYERI THIS 22ND DAY OF MAY, 2025. ONESMUS N MAKAUJUDGEORDERThis judgment has been delivered to the parties via Teams video conferencing with their consent, having waived compliance with Rule 28 (3) of the ELRC Procedure Rules which requires that all judgments and rulings shall be dated, signed and delivered in the open court.ONESMUS N MAKAUJUDGE