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Court of AppealDismissedCivil Appeal (Nakuru) – appeal against Industrial Court Petition (Nakuru), judgment dated 14th March 2014· [2015] KECA 118 (KLR)

Narok County Government & another v Birir & another (Civil Appeal 74 of 2014) [2015] KECA 118 (KLR)

Court of Appeal of Kenya
17 December 2015
8,625 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed that a Governor cannot dismiss a County Executive Member without valid reasons and a fair hearing.

What this practically means

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Executive summary

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The County Government of Narok and its Governor appealed against an Industrial Court judgment (Ong'aya J, 14 March 2014) that declared unconstitutional the summary dismissal of Richard Bwogo Birir, County Executive Committee Member for Agriculture, Livestock and Fisheries, quashed the dismissal by certiorari, reinstated him and awarded costs. The Governor argued that Section 31(a) of the County Governments Act preserved the pleasure doctrine, permitting dismissal without reasons or a hearing, that the proper remedy lay in private law, and that certiorari and reinstatement were unavailable. The Court of Appeal (Waki, Nambuye and Kiage JJA) framed four issues: whether Section 31(a) preserves the pleasure doctrine; the manner of removal of an ECM; whether the Governor properly exercised the dismissal power; and the appropriate remedy. Holding that Sections 24 and 25 of the retired Constitution were not carried into the 2010 Constitution, and reading Articles 1, 10, 47, 73, 129 and 236, the Court held that the pleasure doctrine is no longer applicable in Kenya and respectfully differed from the Nyeri Governor decision, which it treated as persuasive only. Section 31(a) was construed to require the Governor to consider any allegation and explanation and to dismiss only on valid and compelling reasons. Birir's dismissal without reasons or a hearing violated Articles 41 and 47. Certiorari lies in an Article 22 petition by virtue of Article 23(3)(f), and reinstatement flowed from certiorari rather than being an order for specific performance of a service contract. The appeal was dismissed with costs to the first respondent only.

Key legal issues

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01

Whether the pleasure doctrine survives under Section 31(a) of the County Governments Act

Holding

The pleasure doctrine is not applicable in Kenya under the current Constitution; the doctrine of servants of the people and due process has replaced it.

Reasoning

The Court noted that Sections 24 and 25 of the retired Constitution, which vested appointment and termination powers in the President, were not carried into the 2010 Constitution, and the pleasure doctrine receives no express mention there. Reading the Constitution's architecture – Articles 1, 10, 73, 129, 174 and 236 – sovereign power belongs to the people, and removal from public or state office is chained to due process. The Court respectfully differed from the Nyeri Governor case and agreed with the trial court's analysis.

p. 10
02

Construction of Section 31(a) vis-à-vis Section 40 of the County Governments Act

Holding

Section 31(a) permits a Governor to dismiss an ECM on his own motion at any time, but the words 'considers', 'appropriate' and 'necessary' require the Governor to consider any allegation and explanation and act on reasonable grounds.

Reasoning

The Court applied the presumption that every word in a statute has a specific role, holding that 'considers' imports a duty to take into account any allegation and explanation, while 'appropriate' and 'necessary' connote reasonable grounds. The section does not confer unfettered power; the Governor's discretion must be exercised reasonably and not arbitrarily or capriciously, in line with Wednesbury reasonableness and Dunsmuir.

p. 12
03

Whether the respondent's dismissal violated his constitutional rights

Holding

The dismissal without reasons, allegations or a hearing violated the respondent's rights to fair administrative action (Article 47) and fair labour practices (Article 41).

Reasoning

The dismissal letter was curt and cited no reasons; the respondent was neither informed of allegations nor given an opportunity to defend himself. Drawing on Dunsmuir and Lord Denning in Selvarajan, the Court held there was no procedural fairness and no adherence to due process, upholding the trial court's finding that Articles 41 and 47 and other constitutional provisions were violated.

p. 14
04

Whether certiorari and reinstatement were available remedies in a constitutional petition

Holding

Certiorari is available in a constitutional petition under Article 22, and the reinstatement order flowed from certiorari; the private-law authorities relied on were distinguishable.

Reasoning

The Court held that the substance of the petition, not its outcome, determines its nature, following Mumo Matemu. Article 23(3)(f) permits judicial review remedies in Article 22 petitions, and review is constitutionalised. The reinstatement order was a consequence of certiorari, not an order of specific performance of a service contract, so the common-law bar on specific performance in contracts of service did not apply.

p. 16
05

Persuasive value of a decision of a differently constituted bench of the same court (Nyeri Governor case)

Holding

The Nyeri Governor decision, though entitled to respect, is not binding on the Court; the Court respectfully differed from its finding that the pleasure doctrine survives under Section 31(a).

Reasoning

The Court acknowledged the Nyeri Governor case was decided by a differently constituted bench of the same court on substantially similar facts and held that while it deserves utmost respect and consideration, it is not binding, permitting the Court to reach a different construction of Section 31(a) in light of the 2010 Constitution.

p. 1

Legal principles established

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  • The pleasure doctrine is not applicable in Kenya under the 2010 Constitution; removal of state and public officers is governed by due process
  • A Governor exercising the power of dismissal under Section 31(a) of the County Governments Act must give valid and compelling reasons and afford the member due process; the power cannot be exercised without reasons
  • Judicial review remedies such as certiorari may issue in a constitutional petition brought under Article 22 by virtue of Article 23(3)(f)

Court orders

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  1. 1.Appeal dismissed
  2. 2.Costs of the appeal awarded to the 1st respondent only

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 1, 10, 22, 23(3)(f), 28, 41, 47, 50, 73, 129, 174, 200(2)(c), 236, 258, 260
  • County Governments Act, 2012Sections 31(a), 40, 55, 56, 57, 59
  • Employment ActSections 7, 41, 49(4)
  • Industrial Court Act, 2011Sections 12, 17(2)
  • Retired Constitution of KenyaSections 24, 25
  • Court of Appeal RulesRule 29(1)(a)
  • Promotion of Administrative Justice Act (South Africa), 2000Section 2

Cases cited (29)

  • The County Government of Nyeri & The Governor of Nyeri vs Cecilia Wangechi Ndungu
    Civil Appeal No. 2 of 2015
  • Tom Luusa Munyasya & Another vs Governor, Makueni County & Another
    Industrial Cause No. 103 of 2014 (UR)
  • Opoloto vs Attorney General
    (1969) EA 631
  • Zakhem Construction (Kenya) Ltd vs Permanent Secretary, Ministry of Roads & Public Works & Anor
    (2007) eKLR 16
  • Ronald Kimatu Ngati vs Ukulima Sacco Society Ltd
    (2011) eKLR 24
  • Dalmas Ogoye vs KNTC Ltd
    (1969) eKLR
  • The Staff Disciplinary Committee of Maseno University & 2 Others vs Prof. Ochong' Okello
    (2012) eKLR
  • Republic vs Mwangi Kimenyi, Ex parte Kenya Institute of Public Policy and Research Analysis (KIPPRA)
    (2013) eKLR
  • Kenneth Karisa Kasemo vs Kenya Bureau of Standards
    (2013) eKLR
  • Mumo Matemu vs Trusted Society of Human Rights Alliance & 5 Others
    Civil Appeal No. 290 of 2012
  • Kenya Airways Ltd vs Aviation and Allied Workers Union Kenya & Others
    (2014) eKLR
  • Judicial Service Commission vs Gladys Boss Shollei & Another
    Civil Appeal No. 50 of 2014
  • Abu Chiaba Mohamed vs Mohamed Bwana Bakari & 2 others
    (2005) eKLR
  • United States International University (USIU) vs The Attorney General & 2 Others
    Petition No. 70 of 2012
  • Ridge vs Baldwin & others
    (1963) 2 ALL ER
  • Union of India vs Tulsiram Patel
    (1985) 3 SCC 398
  • Muriithi vs Attorney General
    (1983) KLR 1
  • The Matter of the Principle of Gender Representation in the National Assembly and the Senate
    SC Advisory Opinion No. 2 of 2012
  • David Dunsmuir vs New Brunswick
    (2008) 1 S.C.R 190
  • Hassan Ali Joho & another vs Suleiman Said Shahbal
    Petition 10 of 2013
  • Hill vs Willism Hill (Park Lane) Ltd
    [1949] AC 530
  • Placer Dome Canada vs Ontario
    (2006) 1 SCR 715
  • De Verteuil vs Knagge
    (1918) A.C. 557
  • Associated Provincial Picture Houses Ltd vs Wednesbury Corporation
    (1947) 2 ALL ER 680
  • Selvarajan vs Race Relations Board
    [1976] 1 ALL ER 12
  • President of the Republic of South Africa & Others vs South Africa Rugby Football Union & Others
    (CCT 16/98) [1998] ZACC 21
  • Pharmaceutical Manufacturers Association of South Africa & Another: ex parte President of the Republic of South Africa & Others
    (CCT 31/99) [2000] ZACC 1; 2000 (2) ZA 674
  • Onyango Oloo vs The Attorney General
    [1986-1989] EA 456
  • Direct United States Cable Co. vs The Anglo-American Telegraph Co.
    (1877) 2 A.C. 394
On appeal from
Industrial Court (Employment and Labour Relations Court), Nakuru
Constitutional Petition filed 10th February 2014 (Byram Ong'aya J)
Jurisdiction invoked
Appeal under the Industrial Court Act (Section 17(2)) read with Rule 29(1)(a) of the Court of Appeal Rules, as a first appeal to the Court of Appeal

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Narok County Government & another v Birir & another (Civil Appeal 74 of 2014) [2015] KECA 118 (KLR)", Case Analysis (2015). Civil Appeal (Nakuru) – appeal against Industrial Court Petition (Nakuru), judgment dated 14th March 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/118/eng@2015-12-17

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.