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Court of AppealPartially AllowedCivil Appeal 77 of 2019· [2022] KECA 889 (KLR)

County Government of Kirinyaga & another v Kinyua

Court of Appeal
13 May 2022
HOHannah OkwenguAMA. Mbogholi MsaghaKLDr. K. I. Laibuta
9,393 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~38 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed a Governor cannot bypass an ongoing County Assembly inquiry to dismiss a CEC member, and the county must pay compensation.

What this practically means

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Executive summary

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The County Government of Kirinyaga and its Governor appealed against an ELRC judgment (Nzioki wa Makau, J, 18th February 2019) which found that the Governor's termination of Judy Wathata Kinyua's appointment as CEC Member for Gender, Culture and Social Services was wrongful, and awarded her one month's salary in lieu of notice, twelve months' compensation, costs and interest. The respondent cross-appealed for anticipated salary to the end of her term and five years' gratuity. The Court of Appeal held that sections 31(a) and 40 of the County Governments Act, 2012 establish distinct removal procedures that cannot run concurrently: once the County Assembly's inquiry under section 40 commenced in June 2018, the Governor could not hijack the process midstream and dismiss under section 31(a). The Governor's pleasure-doctrine power is discretionary and qualified - it must be exercised reasonably, in good faith and not arbitrarily - and the dismissal breached Articles 41(1) and 47 and natural justice, amounting to wrongful dismissal. The respondent's State officer status did not oust her constitutional safeguards; she was entitled to compensation under Article 23(3)(e) read with Article 22, and the Employment Act, 2007 properly guided the relief. The appeal was dismissed in its entirety and the ELRC judgment upheld. The cross-appeal succeeded only in part: the 1st appellant was ordered to pay KShs. 1,606,027.5 as pro-rated service gratuity for the 10 months and 8 days actually served, with interest from 18th February 2019. Claims for anticipated salary and full-term gratuity failed for want of contractual or legal basis. Each party was ordered to bear its own costs of the appeal and cross-appeal.

Key legal issues

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01

Concurrent application of sections 31(a) and 40 of the County Governments Act

Holding

The two removal procedures are distinct and cannot run concurrently; the Governor could not dismiss under section 31(a) while an Assembly inquiry under section 40 was ongoing.

Reasoning

Section 40 prescribes a mandatory, multi-step Assembly process culminating in a resolution the Governor must enforce. Section 31(a) confers a discretionary power. Once the Assembly inquiry commenced on 21st June 2018, the Governor was precluded from taking adverse action before the statutory steps concluded; dismissing midstream was an impropriety that section 31(a) could not cure.

p. 10
02

Wrongfulness of the dismissal

Holding

The dismissal breached fair labour practices (Article 41(1)), fair administrative action (Article 47) and natural justice, amounting to wrongful dismissal.

Reasoning

The Governor's purported exercise of the pleasure doctrine under section 31(a) was neither reasonable nor procedurally fair: it overrode an ongoing inquiry, ran against due process and good governance, and would otherwise permit hiring and firing at will. The trial court's finding of wrongful dismissal was therefore unimpeachable.

p. 12
03

Entitlement to compensation despite State officer status

Holding

The respondent was entitled to compensation; her State officer status did not erode her constitutional safeguards.

Reasoning

Article 23(3)(e) read with Article 22 empowers courts to award compensation for Bill of Rights violations. The maxim ubi jus ibi remedium applies: where law establishes a right there must be a corresponding remedy. The pleasure doctrine is not compatible with the current Constitution and confers no licence to act arbitrarily.

p. 15
04

Quantum and the proper head of compensation

Holding

The trial court's award of one month's salary in lieu of notice and 12 months' compensation under the Employment Act was correct; the cross-appeal for anticipated salary and full-term gratuity failed, save for pro-rated gratuity for the term served.

Reasoning

The promised compensation under the appointment letter was pegged on monthly salary and gratuity for the term served. No contractual or legal basis supported payment for the unexpired term. The respondent served 10 months and 8 days, entitling her to 31% of 60% of gross monthly salary for each complete month served, with interest from the date of the impugned judgment.

p. 17
05

Liability as between the two appellants

Holding

The 1st appellant (County Government) bears the liability; the 2nd appellant (Governor) is shielded from personal liability under section 133 of the Act.

Reasoning

Section 133 protects members of county government from personal civil liability for acts done in good faith in execution of a duty or under direction. The Governor acted under such direction, so the County Government carries the burden of the award.

p. 17

Legal principles established

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  • Sections 31(a) and 40 of the County Governments Act establish distinct removal procedures that cannot be applied concurrently; where an Assembly inquiry under section 40 is ongoing, the Governor may not hijack the process midstream and dismiss under section 31(a).
  • The Governor's power under section 31(a) to dismiss a CEC member is discretionary and qualified - it must be exercised reasonably, in good faith, and not arbitrarily or capriciously.
  • A State officer's status does not oust constitutional, statutory or procedural safeguards; a CEC member wrongfully dismissed is entitled to compensation under Article 23(3)(e) read with Article 22.
  • The Employment Act, 2007 applies in guiding the determination of appropriate relief for wrongful dismissal of a CEC member.

Court orders

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  1. 1.the appellants' appeal is dismissed in its entirety
  2. 2.the respondent's cross-appeal is allowed in part: the 1st appellant to pay the respondent KShs. 1,606,027.5 on account of service gratuity for the term served, less any statutory deductions, with interest at court rates from 18th February 2019 until payment in full
  3. 3.the judgment and decree of the ELRC delivered on 18th February 2019 in ELRC Petition No. 11 of 2018 is upheld subject to the extent provided in (b)
  4. 4.each party shall bear their own costs of the appeal and of the cross-appeal

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 22, 23(3), 24, 27(1), 41(1) and (2), 47, 174, 175, 176(1), 179(2), 179(6), 185(1), 185(3), 200, 236(b), 260, First Schedule
  • County Governments Act, 2012sections 31, 39(1), 39(2), 40(1)-(6), 133
  • Fair Administrative Action Act
  • Employment Act, 2007

Cases cited (8)

  • Arthi Highway Developers Limited v West End Butchery Limited and 6 others
    [2015] eKLR

    Duty of a first appellate court to re-assess evidence and reach its own conclusions.

  • Selle v Associated Motor Boat Co.
    [1968] EA p.123

    Appeal by way of retrial; appellate court must reconsider and evaluate evidence itself.

  • County Government of Nyeri and Another v Cecilia Wangechi Ndungu
    [2015] eKLR

    Section 31(a) power to dismiss is qualified; must be exercised reasonably, for valid and compelling reasons.

  • County Government of Garissa & another v Idriss Aden Mukhtar & 2 others
    [2020] eKLR

    The pleasure doctrine is incompatible with the current Constitution; dismissal requires good faith, due process and fair hearing.

  • B.P. Singhal v Union of India & Another
    [2010] INSC 365

    Pleasure doctrine power cannot be exercised arbitrarily, capriciously or unreasonably; only in rare and exceptional circumstances.

  • Kalpana H. Rawal vs. Judicial Service Commission and 3 Others
    [2016] eKLR

    Promised compensation for services actually performed may be claimed on principles of compact and equity.

  • Butler vs. Pennsylvania
    10 How. 402: 13 L. ed. 472

    Proposition on promised compensation for services performed, as quoted in Kalpana Rawal.

  • William Marbury vs. James Madison, Secretary of State of the United States
    5 U.S. 137 1 Cranch 137 2 L.Ed. 60

    Where there is a legal right there is a legal remedy; every injury its proper redress.

On appeal from
Employment and Labour Relations Court at Nyeri
ELRC Petition No. 11 of 2018
Jurisdiction invoked
First appeal to the Court of Appeal under the appellate framework governing appeals from the Employment and Labour Relations Court

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "County Government of Kirinyaga & another v Kinyua", Case Analysis (2022). Civil Appeal 77 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/889/eng@2022-05-13

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