County Assembly of Migori & 3 others v Peter Omondi Ouma & 2 others
The bottom line
#Kenya's Court of Appeal upheld a finding that Migori County Assembly workers were unfairly dismissed without a hearing, but cut their compensation from Kshs. 3.5 million to Kshs. 1.5 million.
What this practically means
#Executive summary
#Key legal issues
#Whether employment disputes can be litigated as constitutional petitions
Labour matters are both statutory and constitutional under Articles 41, 47 and 236; a party may sue for constitutional violations arising from employment
The Court held that Article 22(1) entitles any person to institute proceedings for violation of Bill of Rights freedoms, and that labour practices are not only statutory but constitutionally underpinned by Articles 41, 47 and 236. The attempt to confine the trial judge to non-constitutional analysis of summary dismissal was therefore misconceived.
Whether the exhaustion doctrine barred the constitutional petition given section 77 of the County Governments Act
The Public Service Commission appeal mechanism was not an adequate and suitable forum; the exception to the exhaustion doctrine applied
The Court acknowledged the trial judge did not address the alternative remedy issue, but held that the grievance concerned violation of the right to be heard, verging on constitutional interpretation which is the sole mandate of the courts. Since the Commission cannot interpret the Constitution or declare violations, section 77 was unsuitable and the respondents met the threshold for the exception under the Ramogi decision.
Whether the summary dismissal accorded with due process
The dismissal was unfair, unprocedural, illegal and unconstitutional
The respondents were dismissed on 23rd February 2017, before the 24th February date on which they were to appear before the County Public Accounts and Investments Committee, by letters backdated to 23rd January 2013. The employer failed to show any hearing was conducted; the burden of proving fair procedure lay on it and was not discharged. The Committee was also not the proper forum for disciplinary process.
Whether the award of Kshs.3,500,000/- general damages was justified and reasonable
The award was inordinately high; set aside and substituted with Kshs.1,500,000/-
Damages under section 49 are compensatory, not punitive. The trial judge indicated no factors or circumstances supporting the global award, no evidence of salaries was led, and comparative jurisprudence limits constitutional damages to proven rather than presumed damages. Factoring judicial trends and the diminishing strength of the Kenyan shilling, the Court found the figure a wholly erroneous estimate warranting interference.
Legal principles established
#- Where a party pleads violations of constitutional rights such as fair hearing and fair administrative action, the statutory appeal mechanism under section 77 of the County Governments Act is not a suitable or adequate forum, and the exhaustion doctrine does not bar the constitutional petition
- For a termination to be fair, an employer must accord procedural fairness, including an opportunity to be heard before a properly constituted disciplinary body; failure to adhere to procedure or substantive justification renders the dismissal wrongful
- The burden lies on the employer to show that the employment was terminated in accordance with fair procedure
- Damages for unfair termination are compensatory, not punitive, and courts should be cautious about converting employment disputes into constitutional claims with general damages; conservative awards for constitutional violations, with no additional compensation for loss of employment, are sufficient absent proof that statutory remedies are inadequate
- An appellate court will interfere with a damages award only where the trial judge took into account irrelevant factors, omitted relevant ones, or the amount is so inordinately high or low as to be a wholly erroneous estimate
Court orders
#- 1.The finding that the 2nd respondent's dismissal was unfair, unprocedural, illegal and unconstitutional was upheld
- 2.The sum of Kshs.3,500,000/- awarded to the 2nd respondent was set aside and substituted with a sum of Kshs.1,500,000/-
- 3.Each party to bear their own costs in the appeal
- On appeal from
- Employment and Labour Relations Court at Kisumu
- Petition No. 10 of 2017
- Jurisdiction invoked
- First appeal to the Court of Appeal under Rule 31(1)(a) of the Court of Appeal Rules
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.
- Chief of Kenya Defence Forces & 1 other v Moses Etyang[2025] KECA 1409 (KLR)31 Jul 2025
Cite this brief
#Cite this brief
Caselaw, "County Assembly of Migori & 3 others v Peter Omondi Ouma & 2 others", Case Analysis (2025). Court of Appeal, Kisumu (Employment appeal from ELRC Petition No. 10 of 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/6/eng@2025-01-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.