Newton K. Mkabue & 2 others v Kakamega County Government & another [2014] KEELRC 804 (KLR)
The bottom line
#The court cancelled unlawful suspensions by Kakamega County because its Public Service Board wasn't properly constituted, ordering the workers' full salaries paid.
What this practically means
#Executive summary
#Key legal issues
#Whether the Kakamega County Public Service Board had been constituted at the time of the applicants' suspension
The Board had not been established as envisaged under Section 58 of the County Government Act, 2012.
The Act prescribes a competitive appointment process involving advertisement, nomination by the Governor, approval by the County Assembly and formal appointment letters. The respondents produced no such evidence, referring the court only to the Kenya Law website. In the absence of evidence of appointment, the court found the Board was not properly constituted at the time of suspension.
Whether the respondents had authority to suspend seconded staff during the transition period
Only the Public Service Commission could discipline seconded staff pending establishment of the County Public Service Board; the suspension was of no effect.
Relying on Article 235 of the Constitution, the Transition to Devolved Government Act 2012 and the Transition Authority's Guidelines for Governors, the court held that during the transition the PSC continues to manage public officers until County Public Service Boards are established. A suspension effected by an unconstituted Board usurped the PSC's powers.
Whether the laid down disciplinary procedure was followed before suspending the applicants
Partially; the show cause letters were issued as required but the applicants were not paid the allowances they were entitled to while on suspension.
The Public Service Commission of Kenya Discipline Manual, July 2008 governs suspension during the transition. The applicants were served with show cause letters as expected, but they were not paid the other allowances envisaged, contrary to the provisions on entitlements of officers on suspension.
Legal principles established
#- A body purporting to exercise statutory disciplinary powers must demonstrate its proper constitution and appointment with proper evidence before the court; reference to a website is not evidence.
- Until County Public Service Boards are established, only the Public Service Commission may discipline staff seconded to county governments during the transition period.
Court orders
#- 1.The suspension of the applicants is lifted
- 2.The applicants to be paid all their salaries and entitlements since the suspension was effected
- 3.Orders allowed in terms of prayers 3, 4 and 5 of the applications
- 4.The respondents are free to institute proper discipline processes backed by law
- 5.Costs to the applicants
- Jurisdiction invoked
- Original employment and labour relations jurisdiction; applications under Section 3A and 63(c) and (e) of the Civil Procedure Act and Order 40 rule 2, 3, 4 and Order 51 rule 1, 3 and 4 of the Civil Procedure 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.
- Shukuri Alawso Muhamed v Wajir County Secretary, Ahamed Sahal Omar & another [2018] KEELRC 1693 (KLR)[2018] KEELRC 1693 (KLR)27 Jun 2018
Cite this brief
#Cite this brief
Caselaw, "Newton K. Mkabue & 2 others v Kakamega County Government & another [2014] KEELRC 804 (KLR)", Case Analysis (2014). Cause No. 288 of 2013 (consolidated with Misc. Cause No. 11 of 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/804/eng@2014-02-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.