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ELRCPartially AllowedNot stated in judgment· [2014] KEELRC 1279 (KLR)

Julius Nyarotho v Nzoia Sugar Co. Ltd & another [2014] KEELRC 1279 (KLR)

Industrial Court (Employment and Labour Relations Court)
17 September 2014
HWHellen S. Wasilwa
1,515 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court ruled the Attorney General, not Nzoia Sugar Company, must pay a chairman whose appointment the President wrongly revoked.

What this practically means

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Executive summary

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The claimant, appointed chairman of Nzoia Sugar Company Limited by Gazette Notice No. 5555 of 12.5.2010 for a three-year term, had his appointment revoked by Gazette Notice No. 8003 of 8.7.2011, which also appointed his replacement with retrospective effect. He had earlier succeeded in judicial review proceedings before the High Court at Bungoma, which quashed the revocation. He then sued for Kshs 3,240,000/= being earnings for the 21 unserved months, alleging joint liability of the 1st respondent (Nzoia Sugar Company Limited) and the 2nd respondent (Attorney General). The 1st respondent denied liability, contending appointment and revocation of chairmen is the President's sole mandate under the State Corporations Act; the 2nd respondent denied making any decision leading to the revocation. The court framed two issues: liability for the President's error, and entitlement to relief. Following the reasoning in the earlier judicial review judgment, the court held that liability for the President's mistake falls on the State through the Attorney General, not on the State Corporation, which neither requested nor influenced the appointment or revocation. It struck out the 1st respondent with costs to the claimant. On quantum, only the Kshs 80,000/= monthly honoraria was proved; unquantified sitting and travel allowances were disallowed. The court awarded 21 months' honoraria (Kshs 1,680,000/=) plus six months' equivalent (Kshs 480,000/=), totalling Kshs 2,160,000/=, with costs of the suit, but made no order on the judicial review costs.

Key legal issues

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01

Who is liable for the President's wrongful revocation of a State Corporation chairman's appointment?

Holding

The Attorney General, as chief government advisor and defender of public interest under Article 156(6), bears liability; the State Corporation itself is not liable.

Reasoning

The court adopted the finding in the earlier judicial review judgment that the Attorney General is the proper party in suits arising from presidential errors. Under the State Corporations Act, the State Corporations Advisory Committee advises the President on appointments and removals; the 1st respondent neither requested nor influenced the appointment or revocation, so it could not be liable.

p. 3
02

What damages flow from the unfair and unlawful revocation?

Holding

The claimant was entitled to unpaid honoraria of Kshs 1,680,000/= for the 21 unserved months plus 6 months' equivalent (Kshs 480,000/=), totalling Kshs 2,160,000/=.

Reasoning

The claimant proved monthly honoraria of Kshs 80,000/= and a 36-month term of which 15 months were served. General allowances beyond honoraria were not proved because sittings and travel could not be quantified, so damages were limited to honoraria plus a six-month equivalent compensation.

p. 3

Legal principles established

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  • Where the President errs in revoking an appointment, liability attaches to the State through the Attorney General, not to the State Corporation whose chairman was affected.

Court orders

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  1. 1.Struck out the 1st respondent (Nzoia Sugar Company Limited) from the proceedings, with the claimant to meet its costs of the suit.
  2. 2.Awarded the claimant unpaid honoraria of Kshs 1,680,000/= being 21 months at Kshs 80,000/= per month.
  3. 3.Awarded the claimant the equivalent of 6 months' honoraria, Kshs 480,000/=, as compensation for the unfair and unlawful revocation, totalling Kshs 2,160,000/=.
  4. 4.Awarded the claimant costs of the suit.
  5. 5.Made no order as to costs arising in the judicial review matter, which were not awarded.

Authorities

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Legislation

  • The State Corporations Act Cap 446 Laws of KenyaSections 6, 6(2), 26, 27
  • Constitution of KenyaArticle 156(6)
Jurisdiction invoked
Original employment and labour relations jurisdiction; prior related judicial review proceedings in Bungoma Misc Civil Appl No. 36 of 2012 (High Court) referenced only as background

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, "Julius Nyarotho v Nzoia Sugar Co. Ltd & another [2014] KEELRC 1279 (KLR)", Case Analysis (2014). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/1279/eng@2014-09-17

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