County Government of Garissa & another v Mukhtar & 2 others (Civil Appeal 294 of 2019) [2020] KECA 546 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that governors cannot dismiss county executive committee members without a valid reason 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
It does not; the Governor's discretion under section 31(a) is subject to due process, valid and compelling reasons, and a fair hearing
The Court reconsidered the Cecilia Wangechi Ndungu and Richard Bwogo Birir decisions. Aligning itself with the latter, it held the current Constitution deliberately omits the pleasure doctrine, which is incompatible with national values of accountability, transparency and fair labour practices. Section 31(a) confers a discretion to dismiss for a reason outside section 40's process, but only subject to due process and fair hearing; otherwise it would be contrary to Articles 41 and 47.
Whether the Employment Act applies to State officers such as county executive committee members
Yes; the Employment Act binds the Government and applies to all employees under a contract of service, providing minimum terms, and the trial Judge properly relied on section 49(1) in assessing damages
Distinguishing the Cecilia Wangechi Ndungu view, the Court relied on section 3 of the Employment Act, which applies to all employees under a contract of service and binds the Government, with only the excluded categories in section 3(2) outside it. State officers' conditions are regulated by the Constitution and relevant statutes, but the Act supplies minimum protections unless better terms exist.
Whether the petition met the Anarita Karimi Njeru precision threshold
It did; although paragraphs 11 and 12 were loosely drafted, paragraph 13 and paragraphs 7-10 of the petition sufficiently identified the constitutional provisions infringed and the manner of infringement
The Court acknowledged the drafting was deficient but read paragraphs 11-13 together with paragraphs 7-10, which identified Articles 41 and 47 and sections 40 and 30(2)(a) of the County Governments Act. The appellants could not claim not to have understood the complaint, so the ground failed.
Whether the learned Judge was functus officio when amending the decree from Kshs.4,072,500 to Kshs.15,736,562.50 per respondent
No; the Judge was merely perfecting the judgment for the purposes of the decree, and the parties' counsel had consented to the computed figure
The original judgment had also awarded one month's notice in lieu and contractual benefits including gratuity and accrued leave, so the higher figure was a summation of what was already awarded. The consent recorded on 26th July 2017 meant the figure was added as an addendum, not an amendment of the merits. The Court noted it was handicapped because the underlying application was not in the record of appeal.
Whether the Governor's dismissal of the respondents was lawful
No; the Governor misinterpreted section 31(a) as giving a free hand, gave no hearing, and the allegations (unauthorized travel and absenteeism) were neither established nor so grave as to justify summary action
The evidence of the respondents and PW6 (communications officer) that the foreign trips were sanctioned went uncontradicted, as the Governor gave no evidence. The county assembly had already summoned the respondents, a process the Governor could not short-circuit. The dismissal breached Articles 41 and 47, natural justice, and Article 236 due process, amounting to unfair termination.
Legal principles established
#- The pleasure doctrine is not preserved under section 31(a) of the County Governments Act; a Governor may dismiss a county executive committee member under section 31(a) only for a reason, subject to due process and a fair hearing, and not at will
- A Governor exercising section 31(a) dismissal powers must show a reasonable, valid and compelling ground that made the action necessary or appropriate, and must demonstrate that due process was followed and a fair hearing given
- The Employment Act applies to State officers employed under a contract of service; its terms constitute minimum terms unless the Constitution, relevant statute or contract provides better terms
- A court that has delivered judgment is not functus officio when perfecting or computing its judgment for the purposes of the decree, particularly with the parties' consent
- A Governor cannot short-circuit a removal process already before the county assembly by purporting to act under section 31(a) of the County Governments Act
Court orders
#- 1.The appeal is dismissed with costs
- On appeal from
- Employment and Labour Relations Court
- null (not stated in judgment)
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction (first appeal on facts and law); judgment does not cite a specific provision
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "County Government of Garissa & another v Mukhtar & 2 others (Civil Appeal 294 of 2019) [2020] KECA 546 (KLR)", Case Analysis (2020). Court of Appeal at Nairobi (record of appeal; original Petition before the Employment and Labour Relations Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/546/eng@2020-07-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.