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ELRCDismissedConstitutional Petition filed 14.04.2015· [2015] KEELRC 795 (KLR)

Shadrack Wangombe Mubea v County Government of Nyeri & another [2015] KEELRC 795 (KLR)

Employment and Labour Relations Court
10 July 2015
BOByram Ongaya
4,165 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 and Labour Relations Court ruled that Nyeri County lawfully dismissed a county executive member for poor performance because written reasons and a fair hearing were provided.

What this practically means

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Executive summary

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The petitioner, appointed County Executive Secretary for agriculture, livestock and co-operative development in Nyeri County in October 2013, was terminated by the Governor's letter dated 7.04.2015, citing failure to provide strategic leadership, with key deliverables such as the agriculture policy, sector bills and the Task Force Report on Horticulture recommendations non-existent or incomplete. The petitioner petitioned the court for declarations of breach of Articles 27, 28, 41 and 50, conservatory orders of stay, judicial review orders of certiorari and prohibition, and alternatively payment of dues for the remainder of the term. The respondents justified the termination under section 31(a) of the County Governments Act, contending the petitioner had been warned, heard, and had failed to perform. The court framed four issues: whether reasons were given; whether they were valid; whether the Employment Act and Article 41 applied to a state officer; and entitlement to remedies. It held the termination letter communicated written reasons as envisaged by Article 47(2); that a section 31(a) dismissal is exclusive of section 40(1) removal, requires reasons making dismissal appropriate or necessary, and demands due process, which was satisfied through executive committee meetings, performance targets and a pre-termination hearing. The court followed its own decision in Birir's case, holding state officers are employees of the people, Article 41 applies universally, and the Employment Act applies as residual law, but here the County Governments Act governed removal. Finding no violation of fundamental rights, the court dismissed the petition with costs on 10 July 2015.

Key legal issues

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01

Whether reasons were given for the termination

Holding

Yes; the termination letter communicated written reasons justifying the termination as envisaged by Article 47(2).

Reasoning

The court examined the termination letter of 7.04.2015, which set out the Governor's reasons: failure to provide strategic leadership, with key deliverables such as the agriculture policy, bills and the Task Force Report on Horticulture recommendations non-existent, incomplete or unusable. Receipt of the letter was undisputed. The court found the reasons were communicated in writing, satisfying Article 47(2)'s requirement of written reasons for administrative action.

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02

Whether the reason was valid and the process fair under section 31(a) of the County Governments Act

Holding

Yes; the reasons existed at the time of termination and the petitioner was given a hearing through county executive committee meetings and performance targets.

Reasoning

The court held that a section 31(a) dismissal does not require proof of the section 40(1) grounds but requires considerations making dismissal appropriate or necessary, which imports reasons and due process. Performance concerns were raised in executive committee meetings (e.g. 18.04.2014), targets were set, the petitioner was heard before termination and offered no justifiable explanation. The petitioner filed no supporting affidavit with the petition and exhibited no policy documents or bills to counter the respondents' case.

p. 5
03

Whether the Employment Act, 2007 and Article 41 applied to the petitioner as a state officer

Holding

State officers are employees of the people; Article 41 applies universally, and the Employment Act applies as residual law, but in this case the County Governments Act, sections 31 and 40 governed removal, so the Employment Act did not apply.

Reasoning

Relying on its own earlier decision in Birir's case, the court held that all public and state officers are servants of the people, not of each other, and are in an employment relationship governed by the Constitution, legislation, precedent and administrative practice. Article 41's right to fair labour practices is universal, subject only to limitations under Articles 24 and 25. However, for removal of county executive committee members the County Governments Act makes specific provision in sections 31 and 40, displacing the Employment Act.

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04

Whether the petitioner was entitled to the remedies prayed for

Holding

No; the petition failed and was dismissed with costs.

Reasoning

Having found no violation of the alleged fundamental rights, and that the termination was for valid reasons considered appropriate or necessary under section 31(a), the court found no entitlement to the declaratory, conservatory, judicial review or alternative payment remedies. The court also noted that the petition was filed without a supporting affidavit, which served as an impetus for its dismissal.

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Legal principles established

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  • Removal of a county executive committee member under section 31(a) of the County Governments Act is exclusive of removal under section 40(1); appropriateness or necessity imports the requirement of reasons.
  • Both section 31(a) and section 40 disciplinary processes demand due process of law and compliance with rules of natural justice.
  • State and public officers are employees of the people within an employment relationship; Article 41 applies to them and the Employment Act applies as residual law unless the Constitution or legislation provides superior terms or statutory exclusions apply.

Court orders

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  1. 1.Judgment entered for the respondents
  2. 2.The petition dismissed with costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 1, 2, 3(1), 10, 19, 20, 21, 22, 24, 25, 27(1)(2)(3), 28, 41(1), 47(1) and (2), 48, 165(3)(b), 191, 258(1)
  • County Government Act No. 17 of 2012Sections 30, 30(2)(a), 31(a), 40, 40(1)
  • Employment Act, 2007Sections 3(1), 3(3), 3(4), 3(5), 3(6)
  • Constitution of Kenya (Supervisory Jurisdiction and Protection of Fundamental Rights and Freedoms of the Individual) High Court Practice and Procedure Rules, 2013Rules 4, 10, 11, 13, 20

Cases cited (3)

  • County Government of Nyeri and Another –Versus- Cecilia Wangechi Ndung'u
    [2015] eKLR
  • Richard Bwogo Birir –Versus- Narok County Government and 2 Others
    [2014] eKLR
  • Mburugu Muguna Geoffrey – Vs- Attorney General, Civil Case No. 3472 of 1994 at Nairobi
Jurisdiction invoked
Articles 22, 165(3)(b) and 258(1) 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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Cite this brief

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Cite this brief

Caselaw, "Shadrack Wangombe Mubea v County Government of Nyeri & another [2015] KEELRC 795 (KLR)", Case Analysis (2015). Constitutional Petition filed 14.04.2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/795/eng@2015-07-10

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