Narok County Government & another v Birir & another (Civil Appeal 74 of 2014) [2015] KECA 118 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the pleasure doctrine survives under Section 31(a) of the County Governments Act
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.
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.
Construction of Section 31(a) vis-à-vis Section 40 of the County Governments Act
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.
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.
Whether the respondent's dismissal violated his constitutional rights
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).
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.
Whether certiorari and reinstatement were available remedies in a constitutional petition
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.
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.
Persuasive value of a decision of a differently constituted bench of the same court (Nyeri Governor case)
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).
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.
Legal principles established
#- 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
#- 1.Appeal dismissed
- 2.Costs of the appeal awarded to the 1st respondent only
- 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
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Michael Mwangi Gachara v Kenyatta University[2026] KEELRC 2466 (KLR)21 Sept 2026
- Yussuf Daud Adan v Governor Isiolo County & 4 others [2018] KEELRC 539 (KLR)[2018] KEELRC 539 (KLR)12 Nov 2018
Cite this brief
#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.