Tom Luusa Munyasya & another v Governor, Makueni County & another [2014] KEELRC 290 (KLR)
The bottom line
#Kenya's Employment Court confirmed that Governors can dismiss County Executive Committee Members without reasons, and such officials cannot sue for unfair termination.
What this practically means
#Executive summary
#Key legal issues
#Governor's prerogative over County Executive Committee Members
The Governor has the same prerogative to hire and fire Members of the County Executive as the President has over Cabinet Secretaries; removal is a political process not challengeable under employment law.
The Court traced the royal pleasure doctrine and its partial displacement by the due process doctrine, holding that Executive Members are a special category of Employees serving political mandates. Their tenure hinges on the appointing authority's popular mandate; removal is either by the CEO's prerogative or by Assembly resolution, both political processes outside the Employment Act.
Applicability of the Employment Act 2007
The Employment Act 2007 does not apply to County Executive Committee Members or Cabinet Secretaries; they are a special category of Employees deserving exclusion.
Section 3 of the Employment Act already excludes certain categories; the Court read Executive Members as analogous special Employees whose relationship carries an implied term of dismissal at pleasure. Remedies such as notice, service pay, reinstatement and compensation are unavailable to them.
Constitutionality of Sections 40, 44(c) and 76 of the County Governments Act 2012
Section 40 is consistent with the pure Presidential System; Section 44(c) is inconsistent but can be read down with no material effect; Section 76 applies to County Public Service Board employees, not Executive Members.
Section 40 mirrors Article 152(6)-(10) removal procedure and strengthens accountability. Section 44(c)'s contractual limitation is severable since the Governor sets the terms of appointment and may include a prerogative clause. Section 76 protects Board employees only.
Jurisdiction of the Industrial Court
The Court has jurisdiction to rule on constitutionality of employment-related legislation, but once the Governor's prerogative is established, nothing remains for trial and jurisdiction is declined.
Jurisdiction flows from Article 162(2), the Industrial Court Act and Section 87(2) of the Employment Act, per the Macharia and Lillian 'S' authorities. However, having found the removal lawful and the Employment Act inapplicable, the Court had no further issues to adjudicate.
Legal principles established
#- Members of County Executive Committees are political appointees serving at the pleasure of the Governor, and cannot challenge their removal as unfair termination under the Employment Act 2007.
- The Industrial Court has jurisdiction to rule on the constitutional consistency of legislation touching on employment disputes.
- Article 236 of the Constitution and Section 76 of the County Governments Act 2012 do not impose due process requirements on the President or Governor in dismissing Cabinet Secretaries or Members of the County Executive Committee.
Court orders
#- 1.The preliminary objection is sustained, to the extent stated in this ruling.
- 2.A declaration that the Employment Act 2007 has no application in the removal of County Executive Committee Members.
- 3.A finding that the County Governments Act 2012 is not in material departure from the pure Presidential System.
- 4.The Claim is struck out with no order on the costs.
- Jurisdiction invoked
- Article 162(2) of the Constitution, Industrial Court Act 2011 (Section 12), and Section 87(2) Employment Act 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Tom Luusa Munyasya & another v Governor, Makueni County & another [2014] KEELRC 290 (KLR)", Case Analysis (2014). Not stated in the judgment extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/290/eng@2014-09-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.