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ELRCPartially AllowedPetition No 46 of 2015· [2015] KEELRC 622 (KLR)

Idris Aden Mukhtar & 2 others v County Government of Garissa & another [2015] KEELRC 622 (KLR)

Industrial Court of Kenya (Employment and Labour Relations Court)
27 July 2015
HWHellen Wasilwa
4,818 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This is a ruling on the Petitioners' Notice of Motion dated 27th May 2015 seeking interim reinstatement of three former Garissa County Executive Committee Members dismissed on 22nd May 2015, and on the Respondents' Notice of Motion dated 3rd June 2015 seeking to vacate the exparte reinstatement orders granted on 27th May 2015. The Petitioners, dismissed over alleged unauthorised foreign travel (1st and 3rd Petitioners) and failure to implement a water policy (2nd Petitioner), alleged lack of due process, forgery of Respondents' documents, and that the dismissal was actuated by clan politics, invoking Articles 10, 41, 47 and 50 of the Constitution and Sections 31 and 40 of the County Governments Act. The Respondents maintained the dismissals were lawful exercises of statutory power, that replacements had been appointed in acting capacity, and that interim reinstatement offended separation of powers and the rules on mandatory interlocutory injunctions. The court framed three issues: its jurisdiction to make the orders, whether a prima facie case existed, and what orders to grant. Holding that it had jurisdiction notwithstanding separation of powers, and applying Giella v Cassman Brown as refined in Halsbury's Laws, the court found the Applicants had not demonstrated a prima facie case, had not proved the alleged forgeries, and had not shown they were not compensable in damages. Following J. Rika in Alfred Njungu Kiungui v Bomas of Kenya, it held interim reinstatement tantamount to final relief. The court vacated the interim reinstatement orders but precluded the Respondents from substantively filling the positions pending hearing of the Petition on a priority basis.

Key legal issues

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01

Jurisdiction vis-à-vis separation of powers

Holding

The court has jurisdiction to inquire into the legality of the dismissal of CEC members notwithstanding the doctrine of separation of powers.

Reasoning

Relying on Erastus Onyango Nyamori v County Government of Migori and Richard Bwogo Birir v Narok County Government, the court held that the Constitution vests sovereign power in the people, that the court may consider the legality of state action and whether the law and procedure were adhered to, and that under Article 162(2)(a) it has power to determine employment and labour relations issues; separation of powers does not arise where the court is interpreting regulations.

p. 8
02

Prima facie case for interlocutory reinstatement

Holding

The Applicants failed to establish a prima facie case warranting interim reinstatement; the forgery allegations were not demonstrated and the burden of showing unreasonableness lay on the Applicants.

Reasoning

Applying the Giella v Cassman Brown principles as refined in Halsbury's Laws of England, the court found that while concerns were raised against the Applicants, they failed to respond citing time constraints, and they did not demonstrate the alleged forgery of documents. It was the Applicants' duty to demonstrate that the Governor's dismissal power was exercised unreasonably, and mere assertions of malice and clan politics did not suffice.

p. 9
03

Reinstatement at interlocutory stage

Holding

Interim reinstatement was tantamount to deciding the case to conclusion and is barred at exparte/interlocutory stage by Rule 16(8)(a) of the Industrial Court (Procedure) Rules 2010.

Reasoning

Following J. Rika in Alfred Njungu Kiungui v Bomas of Kenya, the court held that statutory protections are a shield not a sword, that exparte reinstatement orders are prohibited, and that reinstatement should only be granted sparingly after hearing both parties. The court retains power to grant reinstatement, re-engagement or damages if the Petition ultimately succeeds.

p. 10
04

Qualified nature of the Governor's dismissal power under Section 31(a) of the County Government Act

Holding

The Governor's power to dismiss a CEC member at pleasure must be exercised reasonably, not arbitrarily or capriciously, and must comply with constitutional principles in Articles 10, 41 and 47.

Reasoning

The court adopted the Court of Appeal's holding in County Government of Nyeri v Cecilia Wangechi Ndungu that Section 31(a) confers a dismissal power exercisable at pleasure but qualified by the duty to act reasonably. Whether that threshold was met was a matter for determination at the full hearing of the Petition.

p. 9

Legal principles established

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  • The removal of a County Executive Committee member is not a purely political decision immune from judicial scrutiny; the court has jurisdiction to examine the legality and procedural regularity of such removal.
  • A Governor's power to dismiss a CEC member at pleasure is qualified: it must be exercised reasonably and not arbitrarily or capriciously.
  • Reinstatement as an interim remedy should be granted sparingly after hearing both parties, and the court shall not grant an exparte order reinstating an employee whose services have been terminated.

Court orders

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  1. 1.The interim orders granted on 27th May 2015 reinstating the Petitioners to the positions previously held before their dismissal as Garissa County Executive Committee Members are vacated.
  2. 2.To preserve the positions previously held by the Applicants, the Respondents are precluded from substantively filling the said positions pending the hearing and final determination of the Petition.
  3. 3.The Petition to be handled on a priority basis given the nature of the orders sought in the final analysis.

Authorities

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Legislation

  • Constitution of KenyaArticle 23
  • Constitution of KenyaArticle 50
  • Constitution of KenyaArticle 47
  • Constitution of KenyaArticle 41
  • Constitution of KenyaArticle 10
  • Constitution of KenyaArticle 162(2)(a)
  • Constitution of KenyaArticles 174 & 176; Article 2(5) & (6)
  • Civil Procedure Rules 2010Order 51 Rule 1
  • County Governments ActSections 5, 30, 31, 31(a) and 40
  • County Assembly Powers and Privileges ActSection 27
  • Industrial Court (Procedure) Rules 2010Rule 16(8)(a)
  • Employment Actprotections generally referred to

Cases cited (6)

  • County Government of Nyeri & Another vs Cecilia Wangechi Ndungu
    Civil Appeal No. 2 of 2015
  • Erastus Onyango Nyamori vs County Government of Migori & Another
    (2014) eKLR
  • Richard Bwogo Birir v Narok County Government & 2 others
    Petition No. 1 of 2014
  • Giella vs Cassman Brown
  • Alfred Njungu Kiungui vs Bomas of Kenya
    Case No. 620/2013
  • Halisbury's Laws of England, Vol. 11 (2009) 5th Edition, paragraph 385
Jurisdiction invoked
Article 162(2)(a) of the Constitution and Article 23 (supervisory jurisdiction and protection of fundamental rights and freedoms); Industrial Court (Procedure) Rules; Order 51 Rule 1 of the Civil Procedure Rules 2010

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, "Idris Aden Mukhtar & 2 others v County Government of Garissa & another [2015] KEELRC 622 (KLR)", Case Analysis (2015). Petition No 46 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/622/eng@2015-07-27

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