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ELRCPartially AllowedPetition No 7 of 2015· [2015] KEELRC 244 (KLR)

Monica Cyombua Gitari & another v Embu County Government & 3 others [2015] KEELRC 244 (KLR)

Employment and Labour Relations Court of Kenya
20 November 2015
BOByram Ongaya
3,283 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled that a county governor cannot force senior officers to 'step aside' without following the law's disciplinary procedures.

What this practically means

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Executive summary

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The petitioners, the chief officer for gender, empowerment, culture, children and social services and the county executive member for education of Embu County, challenged letters dated 19 May 2015 by the governor requiring them to show cause and to step aside on compulsory annual leave to facilitate investigations. They alleged violations of Articles 27, 28, 41, 47 and 50 of the Constitution and sections 40 and 55 of the County Governments Act, seeking declarations, certiorari, compensation and costs. The respondents opposed through a replying affidavit but filed no submissions, and the interested party (the County Public Service Board) disassociated itself from the suit. The court accepted the petitioners' unrebuted facts. It held that no statutory provision empowered the governor to impose a 'stepping aside' process: the 1st petitioner fell under the disciplinary control of the County Public Service Board under section 59(1)(c) of the County Public Service Act, while over the 2nd petitioner the governor's powers extended only to dismissal under sections 30(a), 31(b) and 40 of the County Governments Act. Applying Wednesbury reasonableness, the court found the governor acted on extraneous, community-hostility-driven considerations. Articles 27(1), 41(1) and 47 were contravened. The court granted the declarations sought and certiorari quashing the decisions, but refused compensation as abandoned, the petitioners having served with full benefits under interim orders. Costs were awarded to the petitioners against the respondents.

Key legal issues

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01

Whether the 2nd respondent lawfully issued the show-cause and stepping-aside letters

Holding

The 2nd respondent acted unlawfully and unreasonably; no statutory provision empowered him to require the petitioners to step aside or show cause in the manner done.

Reasoning

Section 40 and section 31 of the County Governments Act prescribe removal/dismissal procedures for a county executive committee member but do not permit the governor to ask an officer to step aside. The 1st petitioner was under the disciplinary control of the County Public Service Board under section 59(1)(c), so the governor usurped the Board's functions. The scope and meaning of 'stepping aside' is not provided in law, making the process arbitrary and alien to the governing statute, and the Wednesbury reasonableness test confirmed unreasonableness.

p. 4
02

Whether the petitioners' fundamental rights were contravened

Holding

Articles 27(1), 41(1) and 47 of the Constitution were contravened by the invented and unreasonable disciplinary process.

Reasoning

The petitioners were entitled to the prescribed disciplinary procedure and equal protection of the law; requiring them to step aside through an invented process without legal basis contravened Article 47 on fair administrative action. Subjecting the officers to a process alien to and not agreed under the law governing their employment violated the right to fair labour practices under Article 41(1), and equal treatment under Article 27(1).

p. 5
03

Whether the petitioners are entitled to the remedies prayed for

Holding

Declarations (a)-(e) and certiorari were granted; compensation was refused as abandoned.

Reasoning

Having found unlawful and unconstitutional action, the court granted all declaratory reliefs and certiorari quashing the stepping-aside decisions. However, the compensation prayer failed because no submissions supported it and the interim orders had preserved the petitioners' full pay, benefits and authority to work throughout.

p. 5

Legal principles established

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  • A governor may not invent a disciplinary process (such as stepping aside) that is not founded upon the statutory provisions governing the affected officers' employment.

Court orders

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  1. 1.Declaration that the 2nd respondent had no power to subject the petitioners to disciplinary action known as stepping aside or compel them to proceed on compulsory annual leave to pave way for investigations
  2. 2.Declaration that the notices to show-cause contained in the letters dated 19.05.2015 contravened sections 40 and 55 of the County Governments Act, 2012
  3. 3.Declaration that the decisions of the 2nd respondent contained in the letters dated 19.05.2015 violated Articles 10(1), 174 and 235 of the Constitution
  4. 4.Order of certiorari quashing the 2nd respondent's decisions to step aside the petitioners as contained in the two letters dated 19.05.2015
  5. 5.Declaration that the purported stepping aside and compulsion of the petitioners to proceed on annual leave constituted violation of the petitioners' rights under Articles 27(1), 41(1) and 47 of the Constitution
  6. 6.The respondents to pay the petitioners' costs of the petition proceedings

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 10(1), 27, 27(1), 28, 41, 41(1), 47, 50, 77(1), 174, 235
  • County Governments Act, No. 17 of 2012Sections 30(a), 31(a) and (b), 40, 45(2), 55
  • County Public Service Act, 2012Section 55; section 59(1)(c)

Cases cited (3)

  • Richard Bwogo Birir –Versus- Narok County Government and 2 Others
    [2014] eKLR
  • Mburugu Muguna Geoffrey – Vs- Attorney General
    Civil Case No. 3472 of 1994
  • Associated Provincial Picture Houses Limited –Versus- Wednesbury Corporation
    (1947) 2 ALL ER 680
Jurisdiction invoked
Articles 27, 28, 41, 47 and 50 of the Constitution; County Governments Act, No. 17 of 2012

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Monica Cyombua Gitari & another v Embu County Government & 3 others [2015] KEELRC 244 (KLR)", Case Analysis (2015). Petition No 7 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/244/eng@2015-11-20

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