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ELRCPartially AllowedPetition No 2 of 2016· [2016] KEELRC 258 (KLR)

Hussein Roba Boru v County Government of Isiolo & 3 others [2016] KEELRC 258 (KLR)

Employment and Labour Relations Court
2 December 2016
BOByram Ongaya
5,318 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

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Kenya's employment court ruled that a county secretary had no power to suspend a county public service board chairperson — only the county assembly can remove one.

What this practically means

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Executive summary

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The petitioner, chairman of the Isiolo County Public Service Board, petitioned under Articles 22, 23 and 258 of the Constitution challenging his suspension by the 2nd respondent, the County Secretary, by letter dated 25.04.2016, citing pending criminal charges and complaints by board members. The respondents, though represented by Kithi & Company Advocates, filed no answer, no replying affidavit and no submissions. The court framed two issues: whether the 2nd respondent had authority to suspend the petitioner, and whether the petitioner was entitled to the remedies sought. On the first issue, the court held the county secretary's functions under section 44(3) of the County Governments Act do not extend to suspending or disciplining the board chairperson; public officers are servants of the people, not of each other, and removal of a board chairperson lies only on Article 251(1) grounds through a petition to the county assembly under section 58(5), with no exception where removal is desired by the governor. The court followed its prior decisions in Mundia Njeru Gateria and Richard Bwogo Birir. The suspension was declared unlawful and a violation of Articles 27(1), 28, 41(1) and 47; the petitioner was declared to remain the lawful chairman; permanent injunction and prohibitory orders issued; and certiorari quashed the suspension letter. The court declined to assess the merits of the suspension grounds, the Article 50 declaration, nullification of the 4th respondent's decisions, and unpleaded compensation of Kshs.5 Million. The respondents were ordered to pay the petitioner's costs.

Key legal issues

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01

Authority of the county secretary to suspend the chairman of the county public service board

Holding

The 2nd respondent lacked authority; the suspension was unlawful and illegal as it violated section 58(5) of the County Governments Act and Articles 47 and 251(1) of the Constitution.

Reasoning

The court found no provision of law establishing the 2nd respondent as head of the Public Service Board. Even if the county secretary is head of the county public service under section 44(3)(a), that confers a designation, not unchained power to lord over other officers; no master-servant relationship was created. The county secretary's functions under section 44(3)(b)-(d) exclude disciplinary control over board members. Reliance was placed on the court's prior opinions in Mundia Njeru Gateria and Richard Bwogo Birir that public officers are servants of the people, not of each other.

p. 7
02

Entitlement to constitutional declarations and remedies

Holding

Declarations of unlawfulness, continued legitimacy in office, and violation of Articles 27(1), 28, 41(1) and 47 were granted, together with injunction, prohibitory orders and certiorari quashing the suspension letter; other heads were declined.

Reasoning

Having found the suspension issued without authority, the court held the cited statutory and constitutional safeguards were violated, entitling the petitioner to the declarations, to resume duty without harassment or intimidation as protected by Article 236, and to certiorari. However, the court declined to examine the merits of the suspension grounds (no removal petition before the county assembly), declined the Article 50 declaration, declined nullification of unspecified 4th respondent decisions, and refused unpleaded compensation.

p. 9

Legal principles established

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  • All public and state officers are servants of the people, not of each other; there are no masters and servants within the hierarchies of state and public officers, so no officer enjoys inherent disciplinary powers of a master over another officer.
  • The county secretary's functions under section 44(3) of the County Governments Act do not include suspending or exercising disciplinary control over the chairperson or members of a county public service board.
  • Removal of a board chairperson requires satisfaction of both the substantive grounds in Article 251(1) and the procedure of petitioning the county assembly; there is no exception where removal is desired by the county governor.

Court orders

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  1. 1.Declaration that the purported suspension of the petitioner vide the 2nd respondent's letter dated 25.04.2016 was unlawful and illegal on account of violation of section 58(5) of the County Governments Act as read with Articles 47 and 251(1) of the Constitution
  2. 2.Declaration that under section 58 of the County Governments Act as read with Article 251 of the Constitution, the petitioner remains the legitimate and lawful holder of the office of chairman of the Isiolo County Public Service Board and to continue on duty forthwith
  3. 3.Declaration that the purported suspension constituted a violation of the petitioner's rights under Articles 27(1), 28, 41(1) and 47 of the Constitution
  4. 4.Permanent order of injunction and prohibitory order issued against the 1st, 2nd and 3rd respondents from interfering with the petitioner's discharge of his duties as chairman of the Board
  5. 5.Order of certiorari quashing the purported letter of suspension dated 25.04.2016
  6. 6.The respondents to pay the petitioner's costs of the suit

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 1(1), (2), (3b), (4b), 2, 3, 10, 19, 20, 21, 22, 23, 27(1), 28, 41(1), 47, 50, 73, 75, 159, 174, 175, 232, 235, 236, 251(1), 258, 259
  • County Governments Act No. 17 of 2012sections 44(3), 56(2), 57, 58(1)(a), 58(5), 76(6), 86
  • Public Service Commission and County Assembly Boards on Discipline of seconded officers to the County Governments (Regulations)Regulation 2(b)

Cases cited (5)

  • Hussein Roba Boru v The County Government of Isiolo and 2 Others
    [2015] eKLR
  • Mundia Njeru Gateria v Embu County Government & 5 Others
    [2015] eKLR
  • Richard Bwogo Birir v Narok County Government and 2 Others
    [2014] eKLR
  • George Maina Kamau v The County Assembly of Murang'a and 2 Others
    [2016] eKLR
  • Associated Provincial Picture Houses Limited v Wednesbury Corporation
    (1947) 2 ALL ER 680
Jurisdiction invoked
Articles 22, 23 and 258 of the Constitution of Kenya, 2010 (enforcement of the Bill of Rights); alleged contravention of Articles 27, 28, 41, 47 and 50(1)

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, "Hussein Roba Boru v County Government of Isiolo & 3 others [2016] KEELRC 258 (KLR)", Case Analysis (2016). Petition No 2 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/258/eng@2016-12-02

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