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ELRCDismissedPetition 27 of 2015· [2016] KEELRC 465 (KLR)

Gabriel Smith Otieno Awiti v Homabay County Assembly & another [2016] KEELRC 465 (KLR)

Employment and Labour Relations Court
29 September 2016
MOMaureen Onyango
1,979 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Petitioner, employed as Senior Sergeant at Arms of Homa Bay County Assembly effective 1st July 2014, petitioned against the Respondents' advertisement in the Daily Nation of 23rd October 2015 for the post of Chief Sergeant at Arms, contending that he had been confirmed to that position by a letter dated 8th December 2014 and that the advertisement was intended to replace him without due process, actuated by malice, in breach of his rights to fair labour practices, dignity, life and fair administrative action. He sought declarations, a perpetual mandatory injunction or prohibition against recruiting for the advertised position, and general damages. The Respondents explained that the confirmation to the higher position was an inadvertent error by the Clerk, revoked the same day by a letter the Petitioner refused to receive, and that he was never appointed to the position. The court framed two issues: whether any constitutional rights had been infringed and, if so, whether the remedies sought were available. Applying the doctrine of estoppel relied on by the Petitioner, the court found he had not acted on the confirmation letter to his detriment, since his terms of service were unchanged and his payslips continued to describe him as Senior Sergeant at Arms. The court further held that confirmation to a position never appointed to would conflict with Article 232(1)(g) on fair competition and merit and be invalid under Article 2(4), found the malice allegations unfounded, and dismissed the petition, with each party bearing its own costs.

Key legal issues

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01

Whether the doctrine of estoppel applied to the erroneous letter confirming the Petitioner to the position of Chief Sergeant at Arms

Holding

Estoppel does not apply because the Petitioner did not act on the confirmation letter to his detriment; his terms of service were identical and his payslips continued to show him as Senior Sergeant at Arms

Reasoning

The court compared the terms in the letter of appointment and the letter of confirmation and found them identical apart from the job title. The Respondents produced payslips showing the Petitioner's designation as Senior Sergeant at Arms, which the Petitioner never complained about. Applying the requirement of detrimental reliance from Gatirau Peter Munya, the court found no detriment and hence no estoppel.

p. 3
02

Whether a person can be confirmed to a position he was never appointed to

Holding

No - such confirmation would conflict with Article 232(1)(g) on fair competition and merit and would be invalid under Article 2(4)

Reasoning

The court held that confirmation to a position never held would bypass the constitutional values of fair competition and merit as the basis of appointments and promotions in public service, and under Article 2(4) any act in contravention of the Constitution is invalid. The court therefore believed the Respondents' explanation that the confirmation was an inadvertent error.

p. 4
03

Whether the advertisement of the position of Chief Sergeant at Arms was actuated by malice

Holding

No - the allegations of malice were unfounded; the Petitioner produced no evidence of malice

Reasoning

The court found that corporate entities are incapable of malice and that the Petitioner neither filed a further affidavit to controvert the Clerk's replying affidavit nor produced evidence of malice. The alleged erroneous confirmation was accepted as inadvertent, not malicious, and the advertisement was therefore not an unfair labour practice.

p. 4

Legal principles established

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  • Estoppel requires a representation acted upon by the other party to his detriment
  • A person cannot be confirmed in a position he was never appointed to, as such confirmation would violate the public service values of fair competition and merit under Article 232(1)(g)

Court orders

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  1. 1.The petition is dismissed
  2. 2.Each party shall bear its own costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 47(1) and (2)
  • Constitution of Kenya, 2010Article 232(1)(g)
  • Constitution of Kenya, 2010Article 2(4)

Cases cited (4)

  • Gatirau Peter Munya v Dickson Mwenda Kithinji & Others
    [2014]eKLR
  • Serah Njeri Mwobi v John Kimani Njoroge
    C.A No.314 of 2009
  • Charles Kibiru v Nairobi Water & Services Limited
    (2013)eKLR
  • Thompson v. Palmer
    (1933) 49 CLR 507
Jurisdiction invoked
Constitution of Kenya, 2010 - petition alleging violation of fundamental rights (Articles 41, 47 and 232)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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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, "Gabriel Smith Otieno Awiti v Homabay County Assembly & another [2016] KEELRC 465 (KLR)", Case Analysis (2016). Petition 27 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/465/eng@2016-09-29

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