Principal Secretary, National Treasury & another v Kimutai (Civil Appeal 95 of 2019) [2024] KECA 488 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that public officers who resign to run for office cannot be reinstated by ministerial order.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the respondent's resignation was valid and voluntary
- 2.Whether the respondent was properly reinstated
Key legal issues
#Validity and voluntariness of the resignation under Section 43(5) of the Elections Act
The resignation was valid and voluntary; there was no evidence it was involuntary, and it complied with the mandatory statutory and constitutional requirement for public officers to resign before vying for elective office.
The court found it common ground that the respondent resigned on 2nd February 2017 to vie for an elective post under Section 43(5) of the Elections Act, which conforms with Articles 99, 180 and 193 of the Constitution. Reliance was placed on Public Service Commission & 4 Others v Cheruiyot & 20 Others, which held that resignation is a unilateral act and that the provision is constitutional. The respondent was paid his dues and made an informed, uncoerced choice.
Authority to reinstate the respondent after resignation
The Cabinet Secretary's circular reinstating the respondent to the payroll was null and void because only the employer could reinstate; the Public Service Commission's rejection of reinstatement was lawful.
Following Geofirey Kiragu Njogu v Public Service Commission & 2 Others, the court held that the powers to discipline or reinstate cannot be delegated and an unauthorized exercise of delegation renders the decision invalid. Since the 2nd appellant was the employer and had accepted the resignation, only the appellants could reinstate. The Cabinet Secretary acted without legal authority, so the reinstatement was a nullity and the Commission's rejection of reinstatement violated no rights.
Legal principles established
#- A resignation pursuant to Section 43(5) of the Elections Act is a voluntary resignation, and the employer-employee relationship ends upon acceptance of such resignation.
- Only the employer (the Public Service Commission and the 2nd appellant) had authority to reinstate the respondent; the Cabinet Secretary had no legal authority to reinstate an employee of the Public Service Commission.
- On a first appeal, the Court of Appeal's primary role is to re-analyze and re-evaluate the evidence before the trial court and draw its own inferences of fact.
Court orders
#- 1.The appeal is allowed
- 2.The respondent is ordered to pay the costs of the appeal to the appellants
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Employment and Labour Relations Court, Eldoret
- Not stated in the judgment
- Jurisdiction invoked
- First appeal under Rule 31(1)(a) of the Court of Appeal Rules
Relief refused
#Reinstatement and resumption of employment with the 1st appellant without loss of benefits
The resignation was valid and voluntary; the purported reinstatement by the Cabinet Secretary was null and void; the rejection of reinstatement by the Public Service Commission was lawful and violated no rights
12 months' gross salary as damages for unfair labour practices
The appeal was allowed in its entirety, displacing the reliefs granted by the trial court
Costs
The respondent is ordered to pay the cost of the appeal to the appellants.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In the result, we find that the appeal is merited and we allow the same.
Accordingly, the respondent is ordered to pay the cost of the appeal to the appellants.
The respondent voluntarily resigned to seek an elective position. He was not coerced to do so. He made an informed decision as provided for by the law.
We find that the Cabinet Secretary had no legal authority to reinstate the respondent as it is not the duty of a cabinet secretary to employ or reinstate an employee of the Public Service Commission.
Issues in the judgment
#The names of the parties (including the 2nd appellant and the respondent) are not stated in the judgment copy; only the descriptive roles (1st appellant, 2nd appellant, respondent) appear.
The case number and neutral citation of this appeal are not stated in the judgment copy.
Paragraph numbering in the copy is inconsistent (the judgment opens with two paragraphs numbered '1.'), and the date of the deployment letter is misprinted ('30th August 201').
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Levati v Dodla Dairy Kenya Limited & another (Cause E021 of 2024) [2025] KEELRC 2127 (KLR)[2025] KEELRC 2127 (KLR)18 Jul 2025applied
Cite this brief
#Cite this brief
Caselaw, "Principal Secretary, National Treasury & another v Kimutai (Civil Appeal 95 of 2019) [2024] KECA 488 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/488/eng@2024-05-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.