Johnson Muema Musomi v Embu County Government & another [2016] KEELRC 117 (KLR)
The bottom line
#A Kenyan court ruled that an Embu County governor could not discipline a county official for complaining about an unlawful, unfair transfer.
What this practically means
#Executive summary
#Key legal issues
#Governor's power to remove a CEC member under section 31(1)(a)
The section 31(1)(a) procedure is initiated and concluded by the governor and is independent of section 40 removal, following Richard Bwogo Birir v Narok County Government.
The court adopted its earlier holding that removal under the two sections is independent and separable, so the governor could lawfully invoke the section 31(1)(a) disciplinary framework notwithstanding the absence of county assembly involvement.
Ethnic discrimination allegation
The petitioner failed to prove that his ethnicity (Akamba) motivated the disciplinary action.
The court found no evidence supporting the alleged ethnic motivation; the difference in ethnic community between the petitioner and the governor was not shown to have contributed to the petitioner's predicament.
Prematurity of the petition
The petition was not premature because the show-cause notice was founded on the petitioner's valid grievance, an unfair ground under section 46(h) of the Employment Act.
While the procedural framework under section 31(1)(a) read with section 41 of the Employment Act was lawful, the underlying reason was unlawful: the petitioner's complaints about redeployment contrary to section 35(5)(d) could not ground discipline. The employee need not await conclusion of the internal process.
Court's power to interfere with the ongoing disciplinary process
The court interfered because the respondents acted in contravention of section 35(5)(d) and could not identify any statutory basis for the redeployment.
Applying Geoffrey Mworia v Water Resources Management Authority, the petitioner showed the employer was proceeding in contravention of legislation; the redeployment disregarded the statutory requirement of relevant knowledge, experience and career, so the disciplinary process was initiated on unreasonable grounds.
Remedies
Declarations on the governor's lack of power to redeploy without regard to knowledge and experience, certiorari quashing the show-cause notice, and a declaration that the disciplinary action violated Articles 27, 41 and 47 were granted; other prayers failed.
Substantive success on the redeployment and disciplinary notice entitled the petitioner to the declarations and certiorari; the prayers on sections 40 and 55 failed on the merits, the certiorari on the 2014 transfer failed as time-barred, and compensation and Article 10 prayers were deemed abandoned for want of submissions.
Legal principles established
#- Removal of a county executive committee member under section 31(1)(a) of the County Government Act is initiated and concluded by the governor and is independent of removal under section 40 which involves the county assembly.
- A valid grievance on the part of an employee does not constitute a valid reason for termination, and an employee may invoke the court's jurisdiction without awaiting conclusion of the employer's internal disciplinary process.
- A court will interfere with an employer's human resource functions only where the employer acts in contravention of the Constitution or legislation, in breach of agreement, manifestly unfairly, or in a manner making the internal process futile.
Court orders
#- 1.Declaration that under section 35 of the County Governments Act, 2012 read with Articles 27, 41, 47 and 174 of the Constitution the 2nd respondent has no power to transfer or redeploy members of the county executive committee without regard to their knowledge, experience and career
- 2.Order of certiorari quashing the decision of the 2nd respondent to issue the disciplinary notice to show-cause contained in the letter dated 26.05.2015
- 3.Declaration that the envisaged disciplinary action against the petitioner constituted violation of his rights under Articles 27, 41 and 47 of the Constitution
- 4.The respondents to pay the petitioner's costs of the petition
- Jurisdiction invoked
- Articles 22, 23, 258 and 259 of the Constitution of Kenya, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Juliet Wamiri v James R. Njenga & others [2019] KEELRC 63 (KLR)[2019] KEELRC 63 (KLR)10 Dec 2019
Cite this brief
#Cite this brief
Caselaw, "Johnson Muema Musomi v Embu County Government & another [2016] KEELRC 117 (KLR)", Case Analysis (2016). Petition No 8 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/117/eng@2016-12-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.