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ELRCDismissedPetition No. 33 of 2015 (Consolidated with Petition No. 32 of 2015)· [2016] KEELRC 426 (KLR)

Consolata Nabwire Wakwabubi & another v Governor, County Government of Bungoma & 2 others [2016] KEELRC 426 (KLR)

Employment and Labour Relations Court
15 September 2016
MOMaureen Onyango
3,763 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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The Employment and Labour Relations Court dismissed two Bungoma County chief officers' petition because they could not prove their rights were violated or that they had actually been dismissed.

What this practically means

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Executive summary

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The two petitioners, chief officers of the Bungoma County Government employed in March 2014, challenged their suspension and purported dismissal following audit queries over county expenditure. Their petitions were consolidated. They contended that the County Secretary and Governor lacked jurisdiction to institute disciplinary proceedings, that the Ad-Hoc Committee was improperly constituted, and that they were denied a fair hearing under Article 47, Article 50 and section 41 of the Employment Act. They sought declarations, prohibition, a mandatory injunction to continue serving, and orders barring advertising of their positions. The respondents maintained that the Governor acted within his audit oversight powers, that the Ad-Hoc Committee was properly established under section 86 of the County Government Act, and that the disciplinary process had not been concluded. The 3rd Respondent argued the petitioners came to court prematurely and had not exhausted the appeal mechanism under section 77. The court held that the Ad-Hoc Committee was properly constituted, that the petitioners were accorded a fair hearing as far as the process had progressed, and that Article 50 was inapplicable since the disciplinary proceedings were not before a court or tribunal. It found no proof of termination: the only evidence was newspaper cuttings, which carry no probative value. The reinstatement and advertising prayers were redundant since the petitioners remained in office. The petition was dismissed with no order as to costs, the court noting it would not interfere with pending disciplinary or potential EACC and CID processes conducted within the law.

Key legal issues

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01

Whether the Ad-Hoc Committee and disciplinary process were properly constituted and fair

Holding

The Ad-Hoc Committee was properly established under section 86 of the County Government Act and the petitioners were accorded a fair hearing

Reasoning

The Governor had authority under sections 30 and 31 to require responses to audit queries and order investigations. The 3rd Respondent delegated its disciplinary mandate under section 86, and the petitioners made written representations, appeared before the Ad-Hoc Committee and before the 3rd Respondent. No prescribed disciplinary procedure was pinpointed as breached.

p. 6
02

Whether the petitioners' contracts were terminated

Holding

The contracts were not terminated by any of the respondents; the alleged termination via the media was unproved

Reasoning

The 3rd Respondent denied dismissing the petitioners while the 1st and 2nd Respondents said any decision was the 3rd Respondent's. No termination letters were produced or served, and the only proof of the purported termination was newspaper cuttings without press releases or reporter's affidavits.

p. 7
03

Whether constitutional rights under Articles 47, 50, 232, 235, 236 and others were violated

Holding

No violation proved; Article 50 was inapplicable as the disciplinary hearing was not before a court or tribunal

Reasoning

The petitioners, following Anarita Kirimi, failed to specify and demonstrate with particularity the rights violated, in what manner and by whom. Fair administrative action under Article 47 was not breached as the disciplinary process remained incomplete, and Article 50 presupposes a hearing before a court or tribunal.

p. 6

Legal principles established

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  • The law requires a fair hearing, not a perfect hearing
  • A petitioner alleging constitutional violation must cite the provisions violated with reasonable precision and demonstrate the manner of violation and by whom
  • Newspaper/media articles have no probative value and cannot be a basis for determination of a case
  • Discipline is a prerogative of the employer and the court will not micromanage employers' boardroom affairs absent demonstrated failure to comply with internal or statutory procedures

Court orders

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  1. 1.The petition is dismissed
  2. 2.No orders for costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 1(1), 2(1) & (4), 3, 10, 23(3), 41(2), 47, 50, 73(2), 200(2)(c), 232, 234, 235(1), 236, 260
  • County Government ActSections 30, 31, 44, 45, 57, 59(1)(c), 76, 77, 86(1)
  • County Public Service ActSections 30, 31
  • Employment ActSection 41
  • Public Finance Management ActSection 155
  • Evidence ActSection 35

Cases cited (11)

  • Richard Bwogo Birir v Narok County Government & 2 others
    [2014]eKLR
  • Muguna Geoffrey v Attorney General
    Civil Case No.3472 of 1994
  • Merita Akinyi Ombuor v County Government of Kisumu
    [2014]eKLR
  • Centre of Human Rights & Democry v Moi Teaching and Referral Hospital Board & 2 others
    [2012]eKLR
  • Speaker of the National Assembly v The Hon. Jane Njenga Karume
    [2008] 1 KLR 426
  • J.W.N. v Teachers Service Commission
    [2014]eKLR
  • Anarita Kirimi
  • Daniel Chacha Muiruri
  • Wamwere v The Attorney General
    [2004] 1 KLR
  • Randu Nzau Ruwa & 2 others v Internal security Minister & another
    [2012]eKLR
  • Tesco Corporation Ltd v Bank of Baroda (K) Limited
Jurisdiction invoked
Article 23 of the Constitution (employment and labour relations jurisdiction of the ELRC); constitutional petitions for violation of Articles 41, 47, 50, 236 and related provisions

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, "Consolata Nabwire Wakwabubi & another v Governor, County Government of Bungoma & 2 others [2016] KEELRC 426 (KLR)", Case Analysis (2016). Petition No. 33 of 2015 (Consolidated with Petition No. 32 of 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/426/eng@2016-09-15

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