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ELRCPartially AllowedNot stated on the face of the judgment· [2014] KEELRC 50 (KLR)

Erastus Onyango Nyamori v County Government of Migori & another [2014] KEELRC 50 (KLR)

Industrial Court of Kenya
3 December 2014
HWHellen S. Wasilwa
2,068 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled that a Governor cannot silently remove a county minister without due process, ordering his reinstatement and withheld salary paid.

What this practically means

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Executive summary

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The claimant, Erastus Onyango Nyamori, moved the Industrial Court by Notice of Motion dated 13.11.2014 seeking urgent interim reinstatement as County Executive Committee Member (CECM) for Public Works, Roads and Transport, an order of prohibition against further exclusion, and alternatively damages equivalent to salary and benefits to May 2018, plus costs. He had been appointed CECM in 2013 following a competitive recruitment but in September 2014 was left out of a cabinet reshuffle without communication, and his salary ceased; an impeachment motion in the County Assembly was also instituted but its outcome was never communicated. The respondents, through the County Secretary Christopher Rusana, maintained that CECMs are political appointees serving at the Governor's pleasure and that removal is a purely political process under Section 31 of the County Government Act not cognisable under the Employment Act. The court framed two issues: whether a CECM's removal is a political decision without legal recourse, and whether the applicant was entitled to the prayers. It held that the Governor's dismissal power, whether under Section 40 or Section 31 of the County Government Act, is exercised subject to the Constitution, and that due process and natural justice, not the pleasure doctrine, govern removal from public office. Finding no formal termination letter or communication of dismissal, the court held the applicant had not yet been removed. It ordered that he remain in office until subjected to due process or final determination of the suit, that all withheld salary be paid, and awarded costs to the applicant.

Key legal issues

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01

Whether the removal of a CECM is a political decision beyond judicial review

Holding

No. The Governor's power to dismiss is subject to the Constitution and the court may examine its legality.

Reasoning

Section 30(2) of the County Government Act makes the Governor's appointment and dismissal powers subject to the Constitution. Sections 40 and 31 must be read together, and the discretion in Section 31(a) is not a licence for whim. The court concurred with Ongaya J in Richard Birir that due process and natural justice have replaced the pleasure doctrine for removal from public office.

p. 4
02

Whether the applicant was entitled to reinstatement and withheld salary

Holding

Yes, in part. Since there was no formal termination or dismissal letter, the applicant was held to remain in office until subjected to due process or final determination of the suit, with withheld salary payable.

Reasoning

The respondents relied on Section 31 of the County Government Act, but there was no formal communication of dismissal to the applicant. Having been appointed through an open recruitment process, he could not be treated as dismissed without a termination letter. The court preserved his position and ordered payment of withheld salary, but declined the alternative damages claim.

p. 4

Legal principles established

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  • Removal of a County Executive Committee Member is not an unfettered political prerogative; the court has power to review the legality of the process.
  • The pleasure doctrine for removal from State or public office has been replaced by the doctrine of due process of law.
  • Sections 40 and 31 of the County Government Act must be read together and the Governor exercises dismissal powers subject to the Constitution.

Court orders

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  1. 1.That the applicant remains County Executive Committee Member in charge of Public Works, Roads & Transport until he is subjected to due process or until the final determination of this suit whichever comes earlier.
  2. 2.The applicant be paid all withheld salary to-date and any other salary that falls due subject to order (1) above.
  3. 3.Costs of the application to be paid by the respondents.

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 40 rules 1, 2, 3, 4 and 8; Order 51 rules 1, 3 & 4
  • Industrial Court Rules 2010Section 16(1)(2)
  • Civil Procedure Act Cap 21 Laws of KenyaSections 3(a) and 63(e)
  • Constitution of Kenya 2010Articles 10(1)(a)(b)(c), 10(2)(a)(b)(c), 47(1)&(2), 162(2), 170(2)(b), 179(2)(b)
  • County Government Act No. 17 of 2012Sections 3(a), 30(2)(a)(d)(e)(i), 30(3)(b)(c), 31(a) and (b), 35(3)(b)(c)(d), 35(4), 36(1)(a) and (2), 40(1), 40(2)
  • Employment Act 2007Not specified
  • Guidelines to GovernorsSection 6

Cases cited (3)

  • Joseph Kiprono Koech v Hon. Josphat Nanok
    Case No. 92/2014 I.C Nakuru
  • Richard Birir v Narok County Govt & 2 Others
    Pet No. 1/2014 of NKR
  • Tom Luusa Munyasya & Anor v Governor, Makueni County & Anor
    Case no. 103/2014
Jurisdiction invoked
Industrial Court Rules 2010, Section 16(1)(2); Civil Procedure Act Cap 21 Sections 3(a) and 63(e); Constitution of Kenya Articles 47(1)&(2), 170(2)(b), 179(2)(b), 162(2); County Government Act Articles 30, 31, 35, 36, 40

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, "Erastus Onyango Nyamori v County Government of Migori & another [2014] KEELRC 50 (KLR)", Case Analysis (2014). Not stated on the face of the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/50/eng@2014-12-03

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