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ELRCPartially AllowedPetition No 5 of 2015· [2015] KEELRC 249 (KLR)

Mundia Njeru Gateria v Embu County Government & 5 others [2015] KEELRC 249 (KLR)

Industrial Court (Employment and Labour Relations Court)
20 November 2015
BOByram Ongaya
8,841 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~35 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled an Embu governor had no power to interdict a county board chairperson, ordering his reinstatement and Kshs.7 million in compensation.

What this practically means

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Executive summary

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The petitioner, chairman of the Embu County Public Service Board, petitioned after the Governor of Embu County issued him a show-cause letter on 11.03.2015 and interdicted him on 18.03.2015, appointing a third respondent to act as chairperson. He sought declarations that the respondents lacked power to discipline or interdict him, that the interdiction contravened Article 251 of the Constitution and section 58(5) of the County Governments Act, certiorari to quash the interdiction, declarations of nullity of Board decisions made during the interdiction, and compensation for violations of Articles 27, 28, 41, 47 and 50. The respondents justified the interdiction on allegations of gross misconduct and incompetence. The court held that the governor had no constitutional or statutory disciplinary power over the Board chairperson, whose removal lies only through a county assembly petition under section 58(5) read with Article 251(1); that county executives enjoy no inherent executive powers outside legislation; and that the pleasure doctrine and servants-of-the-crown doctrine do not survive under the 2010 Constitution, the doctrines of servants of the people and due process applying instead. The acting appointment was null and void for want of authority and assembly approval, rendering the Board defectively constituted so that all its decisions during the interdiction were void ab initio. The court found violations of Articles 27(1), 28, 41(1), 47 and 50(1) and Article 10. It awarded the petitioner withheld pay of Kshs.2,025,000.00 against the 1st respondent and Kshs.5,000,000.00 personally against the governor, ordered the petitioner's resumption of office for the unexpired term, and granted costs. The Article 75 head of relief was declined as abandoned or unjustified.

Key legal issues

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01

Lawfulness of the governor's interdiction of the Board chairperson

Holding

The interdiction was unlawful because the governor had no constitutional or statutory power to discipline or interdict the chairperson; removal is via county assembly under section 58(5) and Article 251(1)

Reasoning

The court examined section 58(5) of the County Governments Act and Article 251(1), which confine removal to assembly proceedings with a 75% vote on specified grounds. It held county executives exercise only powers anchored in legislation under Articles 179 and 183, with no inherent disciplinary powers. Applying Wednesbury unreasonableness and its Birir doctrine of servants of the people, the court found the governor misperceived the chairperson as his servant and acted unlawfully and unreasonably.

02

Validity of the acting chairperson appointment

Holding

The appointment of the 3rd respondent as acting chairperson was null and void for want of authority, indefiniteness and absence of county assembly approval

Reasoning

The court held the Act does not empower the governor to appoint an acting member of the Board. Section 64(2) requires acting appointments to be made by the lawful appointing authority and for a specified period, and section 64(1) requires prescribed qualifications. The appointment was also defective for want of the county assembly approval required under section 58(1).

p. 9
03

Violation of fundamental rights and freedoms

Holding

The interdiction violated Articles 27(1), 28, 41(1), 47 and 50(1) and the Article 10 values and Article 75 integrity provisions (save the specific Article 75 head of relief which was declined)

Reasoning

The court found the unlawful interdiction denied the petitioner equal protection of the statutory removal scheme (Article 27); subjected him to harassment and mental torture offending his dignity (Article 28); amounted to unfair administrative action (Article 47); defiled fair hearing before an independent arbiter since the governor was accuser and purported arbiter (Article 50(1)); and breached fair labour practices (Article 41(1)), offending Article 10 values.

p. 10
04

Validity of Board decisions during the interdiction

Holding

All decisions and actions of the Embu County Public Service Board during the interdiction were null and void ab initio because the Board was defectively constituted

Reasoning

Section 58 prescribes Board membership appointed by the governor with assembly approval through a competitive process. Having illegally interdicted the chairperson and unlawfully appointed an acting chairperson, the governor rendered the Board improperly constituted and incapable of lawfully exercising its powers and functions.

p. 10
05

Compensation for rights violations

Holding

The 1st respondent to pay withheld salary of Kshs.2,025,000.00 and the 2nd respondent personally to pay Kshs.5,000,000.00 compensation

Reasoning

Following its Timber Treatment and Margaret Lorna opinions, the court awarded full withheld pay for the 9-month interdiction period. Considering Arnacherry and Mak'Onyango, the aggravating circumstances of disregarding court orders and the Transitional Authority's advice, and that the governor's violations were not in pursuit of justified governmental purpose, the court fixed general compensation at Kshs.5,000,000.00 personally against the governor rather than the taxpayer.

p. 12

Legal principles established

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  • The pleasure doctrine and the doctrine of servants of the crown do not apply to public and state officers under the Constitution of Kenya, 2010; the doctrines of servants of the people and due process apply instead
  • County executive authority is exercised only within legislative provisions; governors and county executive committees have no inherent executive powers to act outside legislation
  • Removal of a County Public Service Board chairperson is only on the grounds in Article 251(1) and through a petition to the county assembly with a 75% vote, per section 58(5) of the County Governments Act
  • An employee unlawfully or unfairly suspended is entitled to pay for the period kept away from work
  • Where a public officer's rights violation was not in pursuit of justified governmental purpose, compensation is personally borne by the erring officer and not the taxpayer

Court orders

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  1. 1.Declaration that the respondents had and have no power to subject the petitioner to disciplinary action or to interdict him from the office of chairman, Embu County Public Service Board
  2. 2.Declaration that the notice to show-cause conveyed in the letter dated 11.03.2015 contravened Article 251 of the Constitution and section 58(5) of the Constitution
  3. 3.Declaration that the decision of the 2nd respondent to interdict the petitioner violated Article 251 of the Constitution and section 58(5) of the County Governments Act, 2012
  4. 4.Order of certiorari quashing the decision to interdict the petitioner contained in the letter dated 18.03.2015 and the notice to show cause dated 11.03.2015
  5. 5.Declaration that all decisions, actions and proceedings of the Embu County Public Service Board during the purported interdiction are null and void ab initio
  6. 6.Declaration that the interdiction constituted gross violation of Article 10 and 251(1) of the Constitution read with sections 57 and 58(5) of the County Government Act, 2012
  7. 7.Declaration that the interdiction violated the petitioner's rights under Articles 27(1), 28, 41(1), 47 and 50(1) of the Constitution
  8. 8.The 1st respondent to pay the petitioner Kshs.2,025,000.00 withheld pay by 01.12.2015, with interest at court rates in default
  9. 9.The 2nd respondent to pay the petitioner Kshs.5,000,000.00 by 01.01.2016 for violation of fundamental rights and freedoms, with interest at court rates in default
  10. 10.The petitioner to assume his duties as chairperson of the Embu County Public Service Board effective the date of judgment, without intimidation, without a break in service, with full pay and benefits, for the unexpired term unless lawfully removed
  11. 11.The respondents shall bear the petitioner's costs of the petition

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 10, 20, 21, 22, 23, 27, 28, 41, 47, 50, 73, 75, 176, 179, 183, 232, 235, 236, 251, 258, 259
  • County Governments Act, 2012sections 7(1), 30, 31, 32(4), 46, 57, 58, 59, 64, 75, 76(1)
  • Employment Act, 2012 (referred to as Employment Act)sections 3, 3(5), 41, 43, 49(4)(f)
  • Integrity Actnot specified
  • County Governments Act, 2007 (as cited by the Transitional Authority)section 57

Cases cited (8)

  • Richard Bwogo Birir v Narok County Government and 2 Others
    [2014] eKLR
  • Mundia Njeru Geteria v Embu County Government & 3 Others
    Industrial Court Petition No. 116 of 2013
  • Elias Mugendi & 41 Others v County Government of Embu & 2 Others
    Petition No. 14 of 2014
  • Margaret Lorna v Embu County Government
    [2015] eKLR
  • Kenya Union of Printing, Publishing, Paper Manufacturers and Allied Workers v Timber Treatment International Limited
    [2013] eKLR, Industrial Cause No. 21 of 2012 at Nakuru
  • Associated Provincial Picture Houses Limited v Wednesbury Corporation
    (1947) 2 ALL ER 680
  • Arnacherry Limited v Attorney General
    [2014] eKLR
  • Mak'Onyango v Attorney General and Another
    [2013] 1EA at 353
Jurisdiction invoked
Articles 10, 20, 21, 22, 23, 235, 258 and 259 of the Constitution of Kenya, 2010

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (22)

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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, "Mundia Njeru Gateria v Embu County Government & 5 others [2015] KEELRC 249 (KLR)", Case Analysis (2015). Petition No 5 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/249/eng@2015-11-20

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