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Court of AppealPartially AllowedCivil Appeal No. 201 of 2016

John Gakuo & another v County Government of Nairobi, Governor & 2 others [2018] KECA 462 (KLR)

Court of Appeal
13 July 2018
PKP. O. KiageKMK. M'inotiAMA. K. Murgor
3,475 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal ruled that county executive members are state officers, not ordinary employees, though unlawful dismissal still earns constitutional damages.

What this practically means

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Executive summary

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The Court of Appeal (Kiage, M'inoti and Murgor, JJ.A.) disposed of an appeal by John Gakuo and Dr. Timothy Moki Kingondu, former members of the Nairobi County Executive Committee, against an ELRC judgment (Nduma, J., 15 January 2016) that had found their summary dismissal unlawful and awarded each Kshs 904,448.00 under section 49(1)(c) of the Employment Act. The appellants contended they were state officers under Article 260 entitled to constitutional damages, and that compensation should have been computed on a gross monthly salary of Kshs 304,375.00 rather than Kshs 64,213.70. The Court affirmed its earlier decision in County Government of Nyeri v Cecilia Wangechi Ndungu: county executive committee members are state officers to whom the Employment Act does not apply; the Governor may dismiss them at pleasure under section 31(a) of the County Government Act without a disciplinary hearing, but the power must be exercised reasonably and on stated reasons. The Governor's failure to give any reason made the dismissal capricious and arbitrary, violating the appellants' right to fair administrative action under Article 47. However, the other pleaded violations - equality, human dignity, fair labour practices and fair hearing - were not proved by cogent evidence, and no damages were prayed for in the petitions. The Court also refused payment for the unexpired contract term, holding that public office is not property. It set aside the Kshs 904,448.00 award and substituted Kshs 1,500,000.00 for each appellant as Article 47 damages, dismissed the balance of the appeal, and directed each party to bear its own costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether members of a County Executive Committee are state officers under Article 260 of the Constitution to whom the Employment Act does not apply
  2. 2.Whether the learned judge erred in declining to award damages for violation of the appellants' constitutional rights
  3. 3.Whether the appellants were entitled to payment of salaries and benefits for the unexpired term of their contracts
  4. 4.Whether the appellants' compensation should have been computed on the basis of Kshs 304,375.00 gross monthly salary rather than Kshs 64,213.70

Key legal issues

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01

Applicability of the Employment Act to county executive committee members

Holding

Members of a County Executive Committee are state officers under Article 260 and the Employment Act does not govern their relationship with the county government; the trial judge erred in computing compensation under it.

Reasoning

Following County Government of Nyeri v Cecilia Wangechi Ndungu, the court affirmed that Article 260 defines a state officer to include a member of a county executive committee, so the Employment Act, which governs employer-employee relationships, does not apply. The aggrieved officer's options lie in constitutional remedies for fair administrative action or a claim for breach of contract.

p. 3
02

Remedy for arbitrary dismissal of a county executive member

Holding

Where dismissal under section 31 of the County Government Act is not properly invoked, the remedy is damages for violation of the right to fair administrative action under Article 47 and the Fair Administrative Action Act.

Reasoning

The court found the Governor acted arbitrarily and capriciously by terminating the appellants without any reason. Having pleaded and proved violation of fair administrative action, the appellants were entitled to constitutional damages, which the court quantified at Kshs 1,500,000.00 each in substitution for the ELRC award.

p. 3
03

Proof of other constitutional violations

Holding

The appellants failed to prove violation of equality, human dignity, fair labour practices and fair hearing; unlawful termination does not per se establish those violations.

Reasoning

Relying on Ol Pejeta Ranching and Dawood, the court held that violations of specific rights must be proved by cogent evidence. No evidence showed differential treatment on grounds prohibited by Article 27(4), and bare pleadings could not substitute for proof of degrading treatment or denial of a fair hearing.

p. 3
04

Entitlement to salaries for the unexpired term

Holding

The appellants were not entitled to payment for the remainder of their five-year term; section 31(a) did not guarantee tenure, and public office is not property.

Reasoning

Following Kalpana H. Rawal v Judicial Service Commission and the US Supreme Court decision in Butler v Pennsylvania, the court held that an officer is not entitled to pay for a period expected but not actually worked; the Governor could terminate at pleasure so long as he acted neither capriciously nor arbitrarily.

p. 4

Legal principles established

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  • A member of the Executive Committee of a County Government is a state officer under Article 260 of the Constitution and the Employment Act does not apply to such officers.
  • Under section 31(a) of the County Governments Act the Governor may dismiss a member of the Executive Committee at pleasure without a disciplinary hearing, but the dismissal must be based on reasons and must not be arbitrary or capricious.
  • Violation of the right to fair administrative action does not per se establish violation of the rights to equality, human dignity or fair hearing; those must be proved by cogent evidence.
  • A public office is not property and an officer is not entitled to pay for a period he expects to work but has not in fact worked.

Court orders

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  1. 1.Set aside the award of Kshs 904,448.00 made by the ELRC
  2. 2.Substituted an award of Kshs 1,500,000.00 to each appellant as damages for violation of their right to fair administrative action
  3. 3.Dismissed the appeal in its entirety save to the extent of the substituted award
  4. 4.Directed each party to bear its own costs in the appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

PK
majority
KM
majority
AM
majority
On appeal from
Employment and Labour Relations Court
Petition No. 37 of 2015 (coram heading refers to ELRC Pet. No. 17 of 2015)
Jurisdiction invoked
First appeal to the Court of Appeal from the Employment and Labour Relations Court (the judgment does not cite a specific appellate provision)
Consolidated with
High Court Petition Nos. 167 and 168 of 2015, consolidated and heard as ELRC Petition No. 37 of 2015

Relief refused

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General and exemplary damages of Kshs 10 million each for violation of rights to equality, human dignity, fair labour practices and fair hearing

Those violations were not proved by cogent evidence; only the right to fair administrative action was established

p. 4

Payment of Kshs 21,500,833.30 each for the unexpired term of the contract

Under section 31(a) of the County Government Act the Governor could terminate at pleasure; a public office is not property entitling pay for unworked periods

p. 4

Recomputation of compensation on gross salary of Kshs 304,375.00

The Employment Act award was set aside in its entirety and replaced with constitutional damages

p. 4

Costs

Each party to bear its own costs in this appeal

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

We therefore set aside the award of Kshs 904,448.00 and substitute therefore an award of Kshs 1,500,000.00 to each appellant as damages for violation of their right to fair administrative action.
p. 4Final orders - substituted award
The appellants were not entitled to any further damages for violation of their other constitutional rights, which were not proved. Save to that extent, this appeal is bereft of merit and is dismissed in its entirety. We direct each party to bear its costs in this appeal. It is so ordered.
p. 4Disposition and costs
Appropriateness or necessity is not arbitrariness or whimsical. Appropriateness or necessity imports the requirement that there must be reasons that make the dismissal appropriate or necessary.
p. 3Section 31(a) County Governments Act - pleasure power must be reasoned
a public office is not a property to which an officer is entitled until the end of the contract or retirement and further that an officer is not entitled to pay for a period he expects to work, but has not in fact worked.
p. 4No pay for unexpired term

Issues in the judgment

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minor

The coram heading states the appeal is from ELRC Pet. No. 17 of 2015, but the body of the judgment says the consolidated petitions were heard as Petition No. 37 of 2015.

minor

The judgment states the appellants worked seven days in October 2017, although the termination occurred on or about 7th October 2014 - an apparent typographical error.

minor

The cause title lists 'THE GOVERNOR, NAIROBI CITY COUNTY' as both 1st and 2nd respondent, duplicating the 1st respondent designation.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (15)

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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, "John Gakuo & another v County Government of Nairobi, Governor & 2 others [2018] KECA 462 (KLR)", Case Analysis (2018). Civil Appeal No. 201 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/462/eng@2018-07-13

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