Idris Aden Mukhtar & 2 others v County Government of Garissa & another [2016] KEELRC 467 (KLR)
The bottom line
#A Kenyan court ruled that county bosses cannot fire staff without valid reasons, proper procedure and a hearing, and ordered hefty compensation.
What this practically means
#Executive summary
#Key legal issues
#Validity of reasons for dismissal
The Respondents failed to prove valid reasons for the termination of any of the Petitioners.
The 1st and 3rd Petitioners were dismissed for unauthorised foreign travel and absenteeism, but the Respondents did not place before the Court the regulations or directive requiring written gubernatorial permission, and the work tickets and payment of per diem indicated official duty. The 2nd Petitioner's alleged failure to implement policies was unsupported by performance targets or appraisal reports. Under Sections 43 and 45 of the Employment Act, the employer must prove valid reasons, which it failed to do.
Due process before termination
The dismissal violated due process and fair administrative action, breaching Articles 47 and 50(1) of the Constitution and Section 40(1) of the County Governments Act.
The Petitioners were served termination letters by email without notice, show cause or a hearing. Section 31(a) dismissal at pleasure is no longer tenable following the Court of Appeal's rejection of the pleasure doctrine, and dismissal under Section 40(1) required a County Assembly resolution which was never passed. The procedures in Section 41 of the Employment Act were also flouted, subjecting the Petitioners to unfair administrative action.
Pleasure doctrine
The pleasure doctrine does not apply to County Executive Committee Members in the new constitutional dispensation.
The Court followed the Court of Appeal decisions in County Government of Nyeri v Cecilia Wangechi Ndungu and Richard Bwogo Birir v Narok County Government, which held that the pleasure doctrine and servants of the crown doctrine died with the 2010 Constitution, replaced by the doctrine of servants of the people and due process. Section 31(a) dismissal without reasons or procedure is therefore not available to a Governor.
Burden of proof
The Respondents, who alleged misconduct, bore the burden of proving it and did not discharge it.
Relying on Section 107 of the Evidence Act, the Court held that a party asserting facts on which judgment is sought must prove them. The Respondents claimed the foreign trips breached regulations requiring gubernatorial permission but did not produce the regulations or directive, and the Court declined to hunt for government documents not identified by the Respondents.
Legal principles established
#- The pleasure doctrine and the doctrine of servants of the crown do not apply to public and state officers in Kenya under the Constitution of Kenya, 2010; the doctrines of servants of the people and due process apply instead.
- An employer alleging misconduct, including breach of a travel permission requirement, must prove the existence of the rule breached; the court will not go on a fishing expedition for government circulars.
- Under Section 43 of the Employment Act, the employer bears the burden of proving the reasons for termination, failing which the termination is unfair.
Court orders
#- 1.A declaration that the act of the 2nd Respondent in relieving the Petitioners of their duties is a breach of their constitutional rights under Article 47 and 50(1) of the Constitution.
- 2.Each Petitioner to be paid damages equivalent to 12 months' salary (12 x 339,375 = Kshs 4,072,500/=) for unlawful termination.
- 3.Petitioners entitled to 1 month's salary in lieu of notice.
- 4.Petitioners entitled to other benefits under the contract including gratuity for the period to date and any accrued leave not taken.
- 5.Respondents to pay costs of the Petition.
- Jurisdiction invoked
- Articles 1, 2, 3(1), 10, 19, 20, 21, 22, 27(1)(2)&(3), 28, 41(1), 47(1)&(2), 48, 165(3)(b), 191 & 258(1) of the Constitution of Kenya, 2010; Rules 4, 10, 11, 13 and 20 of the Mutunga Rules; Sections 31 and 40(1)&(2) of the County Governments Act No. 17 of 2012
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Idris Aden Mukhtar & 2 others v County Government of Garissa & another [2016] KEELRC 467 (KLR)", Case Analysis (2016). Petition No. 46 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/467/eng@2016-10-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.