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ELCPartially AllowedConstitutional Petition dated 16th September, 2013 (number not stated in the judgment)· [2013] KEELC 17 (KLR)

Mundia Njeru Geteria v Embu County Government & 3 others [2013] KEELC 17 (KLR)

High Court of Kenya
19 December 2013
ANAbuodha Nelson
5,376 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kenya's High Court ruled that a county public service board chairman can only be removed for constitutional reasons, quashing Embu County's attempt to revoke his appointment.

What this practically means

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Executive summary

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The petitioner, appointed Chairman of the Embu County Public Service Board after a competitive process and sworn in on 11th July, 2013, petitioned against his revocation by the Governor on 5th September, 2013 following a County Assembly resolution of 4th September, 2013 rescinding its earlier recommendation. The stated reasons were that he had demanded salary outside the SRC structure and had verbally rejected a letter of appointment dated 19th July, 2013, which he denied ever receiving. He sought declarations, certiorari, injunctions and mandatory orders, contending that under section 58(5) of the County Governments Act read with article 251(1) of the Constitution he could only be removed for the article 251(1) grounds and by a 75% vote of the Assembly. The respondents argued the appointment was incomplete absent a signed letter and gazettement. The Court, Abuodha Nelson J, held the appointment was complete: section 67 requires an appointment to be 'evidenced in writing', and the oath of office signed by the Governor, County Secretary and petitioner sufficed, the employer bearing the statutory duty to issue the written contract. On the merits, the reasons for removal did not fit the exclusive grounds in article 251(1) and no evidence showed the 75% vote requirement was met, so the removal was null and void. The Court quashed both the Assembly's resolution and the Governor's revocation, and restrained the respondents from removing the petitioner except in accordance with article 251(1). Declining to award the mandatory orders for a letter and contract, and treating the petition as a novel devolution matter, the Court made no order on costs.

Key legal issues

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01

Completeness of the petitioner's appointment absent gazettement and a letter of appointment

Holding

The appointment was complete and valid; it was evidenced in writing by the oath of office signed by the Governor, County Secretary and petitioner, and the duty to issue a letter of appointment lay with the employer

Reasoning

Section 67 requires an appointment to be evidenced in writing, not contained in a letter. The oath of office document signed by the Governor, County Secretary and petitioner sufficed. The oath would be superfluous if taken by a person whose appointment was still under process. The employer, under sections 9 and 10 of the Employment Act, bore the duty to draw up the written contract, so it could not rely on the absence of a letter to say the appointment was incomplete.

p. 7
02

Validity of the grounds of removal

Holding

The removal was null and void because the reasons cited did not fit within article 251(1)

Reasoning

Article 251(1) circumscribes exclusively the reasons for removal. The burden lay on the respondents to demonstrate that the reasons in the Governor's letter fitted those parameters. Demanding higher salary than SRC provided and allegedly rejecting an appointment letter were not among the article 251(1) grounds, and the Assembly merely regurgitated the letter without justifying the fit.

p. 9
03

Procedural compliance with the 75% vote requirement

Holding

No evidence was exhibited that the removal complied with section 58(5)(b) requiring a vote of not less than 75% of the members of the County Assembly

Reasoning

The Court found that neither the petitioner nor the respondents exhibited evidence that the purported removal was conducted by not less than 75% of members of the County Assembly as required, and declined to delve further.

p. 9
04

Appropriate remedies where an unlawfully removed office-holder is in a strained employment relationship

Holding

Certiorari against the County and the Assembly's resolution and injunction against the respondents, notwithstanding the common law aversion to specific performance in employment

Reasoning

The respondents are public bodies and a public official; the constitutional exclusivity of removal grounds justifies continuing the employee in office despite the common law principle, since removal otherwise than as the Constitution provides cannot be sanctioned.

p. 10

Legal principles established

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  • The grounds for removal of a member of a county public service board are exclusively those in article 251(1) of the Constitution and must be strictly fitted within those parameters
  • An appointment 'evidenced in writing' under section 67 of the County Governments Act need not be a letter of appointment; it may be evidenced from a document or series of documents in writing
  • Gazetttement is not the source of the validity of an appointment or notice but merely its official announcement
  • The common law rule against specific performance of employment contracts must yield where removal is contrary to the Constitution
  • Bodies with power to deprive a person of his livelihood must observe elementary rules of justice including a hearing

Court orders

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  1. 1.Declaration that the removal of the petitioner was for reasons outside the contemplation of article 251(1) of the Constitution and was null and void
  2. 2.Order of certiorari quashing the resolution of the County Assembly of Embu passed on 4th September, 2013 rescinding its earlier decision appointing the petitioner as the Chair
  3. 3.Order of certiorari quashing the decision of the 2nd respondent rescinding the petitioner's appointment contained in the letter dated 5th September, 2013
  4. 4.Order of injunction restraining the 1st, 2nd and 3rd respondents, their servants and agents from removing the petitioner from office as Chair of the Embu County Public Service Board by any manner or grounds that contravene article 251(1) of the Constitution
  5. 5.No order on costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 10, 25, 27, 28, 41, 47, 50, 73, 75, 87(2), 251(1), Chapter Six
  • County Governments Act, No. 17 of 2012Sections 58(1)(a), 58(2), 58(3), 58(4)(a), 58(5), 58(5)(a), 58(5)(b), 67
  • Employment ActSections 9(2) and 10
  • Evidence ActSection 85
  • Election ActSection 76(1)(a)
  • Public Service Commission RegulationsRegulation 23
  • Standing Orders of the County Assembly of EmbuStanding Order No. 47(2)(a)
  • Salaries and Remuneration Commission Circular No. SRC/TS/CGOVT/3/61-

Cases cited (2)

  • Nderitu Gachagua vs Dr. Thuo Mathenge & 2 others
    Civil Appeal No. 14 of 2013 (Nyeri)
  • Abbot vs. Sullivan
    (1952) 1 KB 189 at p198
Jurisdiction invoked
Article 165 of the Constitution; a petition concerning interpretation and implementation of devolution under the Constitution of Kenya, 2010 and the County Governments Act, 2012

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, "Mundia Njeru Geteria v Embu County Government & 3 others [2013] KEELC 17 (KLR)", Case Analysis (2013). Constitutional Petition dated 16th September, 2013 (number not stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2013/17/eng@2013-12-19

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