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ELRCDismissedCause No 91 of 2014· [2015] KEELRC 1377 (KLR)

Margaret Lorna Kariuki v Embu County Government [2015] KEELRC 1377 (KLR)

Employment and Labour Relations Court
6 March 2015
BOByram Ongaya
2,224 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled a county secretary cannot be fired at will—every public officer is entitled to due process before removal.

What this practically means

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Executive summary

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The respondent County Government of Nyeri filed a preliminary objection dated 10.02.2015 against the claimant's suit arising from the claimant's dismissal from the office of county secretary by the governor. The objector argued, through Njoroge Advocate, that Kenya has a pure presidential system under Article 132 of the Constitution; that county secretaries, like cabinet secretaries, serve at the pleasure of the chief executive; that sections 31(a) and 44 of the County Governments Act, 2012 entitled the governor to dismiss the claimant without reasons; and that the Employment Act, 2007 did not apply, ousting the court's jurisdiction. It relied on Tom Luusa Munyasya v Governor, Makueni County. The claimant, through Waweru Macharia Advocate, submitted that all state organs are bound by the Constitution; the office of county secretary had not been excluded from the Employment Act under section 3; and under the proviso to section 3(5), any excluded office must at least enjoy similar or better terms, including the safeguards of valid reasons, notice and hearing under sections 43 and 41. The court framed three issues: whether the pleasure doctrine applies in Kenya; whether the county secretary's office was excluded from the Employment Act; and whether the court lacks jurisdiction. Following its own decisions in Richard Bwogo Birir v Narok County Government and Cecilia Wangechi Ndungu v County Government of Nyeri, the court held the pleasure doctrine inapplicable, public officers being servants of the people removable only with due process. It found the office was not excluded from the Act, and that exclusion would not oust jurisdiction in any event. The preliminary objection was dismissed with costs, with directions to be taken on the hearing of the suit.

Key legal issues

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01

Whether the pleasure doctrine applies to removal of a county secretary

Holding

The pleasure doctrine does not apply in Kenya; public and state officers are servants of the people and any removal must comply with due process.

Reasoning

The court upheld its own earlier decisions in Richard Bwogo Birir v Narok County Government and Cecilia Wangechi Ndungu v County Government of Nyeri. It reasoned that Articles 1, 10(1), 73(2)(b) and (d) and 129 require executive authority to be exercised in accordance with the Constitution and in service to the people, which is unattainable without giving of reasons and due process. The doctrine of servants of the crown is replaced by the doctrine of servants of the people.

p. 3
02

Whether the office of county secretary was excluded from the Employment Act, 2007

Holding

The office was not excluded; the parties agreed the Minister had not excluded it under section 3. Even if excluded, exclusion would not oust jurisdiction.

Reasoning

The parties agreed the office had not been excluded. The court held that even had it been excluded, the special arrangement's terms would have to be established, and if inferior to the Act's safeguards (including sections 43 and 41 minimum safeguards of valid reasons, notice and hearing), the Act would apply by default under the proviso to section 3(5).

p. 4
03

Whether the court lacks jurisdiction over the claim

Holding

The parties are in an employer-employee relationship and the court has constitutional and statutory jurisdiction over the dispute.

Reasoning

Since the pleasure doctrine did not apply and the office of county secretary was not excluded from the Employment Act, the ground supporting the jurisdictional objection failed. The court found an employer-employee relationship and confirmed its jurisdiction under Article 162(2) of the Constitution and the Employment and Labour Relations Court Act, noting Article 165(5) bars the High Court from such matters.

p. 4

Legal principles established

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  • The pleasure doctrine does not apply in Kenya's public and state service under the Constitution of Kenya, 2010; public and state officers are servants of the people and are removable only with due process of law.
  • Exclusion of an office from the Employment Act under section 3 does not oust the court's jurisdiction; the court will determine the dispute on the contractual terms, and if the special terms are inferior to the Act, the Act applies by default.

Court orders

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  1. 1.The preliminary objection filed for the respondent on 10.02.2015 is dismissed with costs
  2. 2.Parties are invited to take directions on the hearing of the suit

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 132(2)
  • Constitution of Kenya, 2010Article 154(2)(b)
  • Constitution of Kenya, 2010Article 2
  • Constitution of Kenya, 2010Article 1
  • Constitution of Kenya, 2010Article 10(1)
  • Constitution of Kenya, 2010Article 73(2)(b) and (d)
  • Constitution of Kenya, 2010Article 129
  • Constitution of Kenya, 2010Article 165(5)
  • Constitution of Kenya, 2010Article 162(2)
  • County Governments Act, 2012section 31(a)
  • County Governments Act, 2012section 44
  • Employment Act, 2007section 3; section 3(5) proviso; sections 41 and 43

Cases cited (3)

  • Tom Luusa Munyasya and Another v Governor, Makueni County and Another
    [2014] eKLR
  • Richard Bwogo Birir v Narok County Government and 2 Others
    [2014] eKLR
  • Cecilia Wangechi Ndungu v The County Government of Nyeri and Another
    [2014] eKLR
Jurisdiction invoked
Article 162(2) of the Constitution as read with the Employment and Labour Relations Court Act, guided by Article 165(5) of the Constitution

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (10)

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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, "Margaret Lorna Kariuki v Embu County Government [2015] KEELRC 1377 (KLR)", Case Analysis (2015). Cause No 91 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1377/eng@2015-03-06

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