Ndichu v Clerk, Kiambu County Assembly & another (Petition 11 of 2014) [2015] KEELRC 1642 (KLR)

The court applied Sections 43(1) and 47(5) of the Employment Act, allocating to the employer the burden of justifying the removal. It found the Petitioner did not demonstrate entitlement to use public funds for the Brazil trip, and that awarding work to Mugoye & Associates contrary to procurement policy was proved. The allegation of abusive language was not sufficiently proved, but the remaining two reasons sufficed.

Notice of intention to remove was duly issued; a procedural motion exempted the three-day notice requirement and was passed without objection; the Speaker was heard on the floor of the House; and the motion was supported by 69 of 82 members, exceeding the two-thirds threshold. The Speaker, being a member of the Assembly, did not need to appear before a departmental committee.

Since the removal was for valid reasons and by fair procedure, the Petitioner failed on a balance of probabilities to prove violations of Articles 27, 47, 50 and 236 as alleged or at all.

The published information reflected the true allegations from public Assembly proceedings; the Petitioner, as holder of public office, had a diminished expectation of privacy over such matters; and no evidence established the source of the publications, following the principle in Phinelas Nyaga v Gitobu Imanyara. The media houses were not enjoined in the suit.

The Respondents did not respond to the claims for leave days, gratuity at 31% for the first year and three months' notice pay; being uncontested and legitimate terminal benefits duly earned, the court found for the Petitioner on them despite the dismissal of the main Petition.