Merita Akinyi Ombuor v County Government of Kisumu [2014] KEELRC 1373 (KLR)
The bottom line
#A Kisumu County Chief Officer's dismissal was quashed because only the County Public Service Board could fire her, and she was never heard.
What this practically means
#Executive summary
#Key legal issues
#Nature of the applicant's appointment
The applicant was employed on contractual basis for five years, not as a temporary political appointee.
The Transition Authority advisory relied on by the respondents was dated 6th September 2013, after her appointment, and thus could not affect it. Her appointment letter as Chief Officer never stated the appointment was temporary or pending approval by the County Public Service Board, and her duties were those of a Chief Officer in the County Government.
Authority to terminate the applicant's employment
The 1st respondent (County Secretary) had no authority to terminate the applicant's services; that power vested exclusively in the County Public Service Board under sections 56 and 59 of the County Government Act.
Section 59(1) of the County Government Act vests in the County Public Service Board the functions of establishing and abolishing offices, appointing persons and exercising disciplinary control and removal. The termination letter was authored by the County Secretary, who thereby usurped the functions of the Board.
Whether due process and fair hearing were accorded
Due process was not accorded; the applicant was condemned unheard, contrary to Articles 47 and 50(1) of the Constitution and section 41 of the Employment Act.
Even if the 1st and 2nd respondents had authority, they denied the applicant a chance to be heard before termination on grounds of poor performance. Fair administrative action under Article 47 and the hearing requirements of section 41 Employment Act were violated, rendering the termination procedurally unfair and illegal.
Entitlement to certiorari
The applicant was entitled to certiorari to quash the termination decision.
Having been condemned unheard and terminated by persons without authority, the applicant satisfied the requirements for the grant of the judicial review order of certiorari under the leave earlier granted by Odunga J.
Legal principles established
#- The County Public Service Board has the sole mandate to exercise disciplinary control over and remove Chief Officers in the county public service under section 59 of the County Government Act.
- An employer must, before terminating employment on grounds of poor performance, explain the reasons to the employee and hear and consider any representations, per section 41 of the Employment Act.
Court orders
#- 1.An order of certiorari issued quashing the decision of the 1st and 2nd respondents issued on 1st April 2014 terminating the applicant's contract of employment as Chief Officer – Public Relations, Marketing and Change Management of Kisumu County.
- 2.Costs awarded to the applicant.
- Jurisdiction invoked
- Leave granted by Hon. J. Odunga (High Court, 17.4.2014) and the matter placed before the Industrial Court; judicial review proceedings under Order 53 Rule 1(3) of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Merita Akinyi Ombuor v County Government of Kisumu [2014] KEELRC 1373 (KLR)", Case Analysis (2014). Judicial Review Application (Notice of Motion dated 9th May, 2014, filed 23.5.2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/1373/eng@2014-10-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.