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ELRCPartially AllowedPetition No. 21 of 2015· [2016] KEELRC 482 (KLR)

Peter Lokol Lomulen & 2 others v Governor, County Government of Turkana & 3 others [2016] KEELRC 482 (KLR)

Employment and Labour Relations Court of Kenya
15 September 2016
MOMaureen Onyango
5,485 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~22 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled a Governor cannot dismiss County Executive Committee members without valid reasons and due process, and reinstated them.

What this practically means

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Executive summary

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Three County Executive Committee (CEC) members of Turkana County, appointed on 7th June 2014, were dismissed by the Governor. The 1st and 2nd Petitioners received dismissal letters dated 18th September 2015 citing section 31(a) of the County Governments Act; the 3rd Petitioner learnt of her dismissal only from a newspaper. They petitioned for declarations that the dismissals violated sections of the County Governments Act read with Articles 41, 47 and 236 of the Constitution, an order of certiorari, reinstatement, payment of salaries and costs. The Respondents contested the Court's jurisdiction, arguing CEC members are state officers outside the Employment Act, and maintained the Governor's power under section 31(a) is exercisable at any time without assigning cause. Onyango J first rejected the jurisdictional objection, holding that Article 162(2)(a) confers jurisdiction over all employment and labour relations matters, not only those under the Employment Act, relying on USIU v Attorney General and Mugendi v Kenyatta University. On the merits, applying Cecilia Wangechi Ndungu, the Court held that dismissal under section 31(a) requires valid and compelling reasons making it appropriate or necessary, and due process under Articles 47 and 236. The dismissal letters assigned no reasons, and no show-cause or hearing preceded the dismissals. The Court declared the dismissals of the 1st and 2nd Petitioners unlawful and unconstitutional, quashed them, ordered reinstatement, and found the 3rd Petitioner was never validly dismissed since media reports cannot terminate a constitutionally established office. All Petitioners were awarded full salaries and allowances from 18th September 2015 and costs against the Respondents.

Key legal issues

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01

Jurisdiction of the Employment and Labour Relations Court over County Executive Committee members who are state officers

Holding

The Court has jurisdiction; state officers are employees whose terms are regulated by the Constitution or relevant statute, and the Court's mandate is not confined to the Employment Act.

Reasoning

The Court adopted Nduma J's reasoning in Nick Githinji Ndichu and Majanja J's holding in USIU v Attorney General, approved in Mugendi v Kenyatta University, that a court with the status of the High Court under Article 162(2) can enforce fundamental rights in employment matters. Article 162(2)(a) refers to 'employment and labour relations' without confining jurisdiction to the Employment Act, so the objection was dismissed.

p. 9
02

Validity of the dismissal of the 1st and 2nd Petitioners under section 31(a) of the County Governments Act

Holding

The dismissal was unlawful and unconstitutional; the Governor failed to give written reasons or afford due process as required by Articles 47 and 236.

Reasoning

Although section 31(a) permits dismissal where the Governor considers it appropriate or necessary, following Cecilia Wangechi Ndungu there must be valid and compelling reasons. The dismissal letters assigned no reasons; no show-cause letters or opportunity to be heard preceded the dismissal; justification was attempted only in the replying affidavit. The Respondents failed to show the dismissals were appropriate or necessary or that due process was followed.

p. 11
03

Whether the 3rd Petitioner was validly dismissed

Holding

She was never dismissed; media reports cannot terminate a constitutionally established public office.

Reasoning

The 3rd Petitioner learnt of her dismissal from a newspaper report. Relying on Wamwere v Attorney General, Randu Nzau Ruwa and Tesco Corporation Ltd v Bank of Baroda on the lack of probative value of newspaper reports, the Court held that a public office created by gazette notice after Assembly clearance cannot be terminated by presumption or media announcement.

p. 10

Legal principles established

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  • This Court's jurisdiction extends to all employment and labour relations disputes, including those of state officers, and is not confined to employment relationships created under the Employment Act.
  • A Governor dismissing a County Executive Committee member under section 31(a) of the County Governments Act must have reasons that make the dismissal appropriate or necessary, and must afford due process under Articles 47 and 236 of the Constitution.
  • Media reports cannot terminate a public office established under the Constitution and the County Government Act.

Court orders

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  1. 1.Declaration that the dismissal of the 1st and 2nd Petitioners as County Executive Committee Members was a violation of section 31(a) of the County Government Act and Articles 47 and 236 of the Constitution, and therefore unlawful and unconstitutional.
  2. 2.Certiorari to call into court and quash the decision of the 1st Respondent to dismiss the 1st and 2nd Petitioners, and an order directing the Respondents to allow them to resume their positions and official duties forthwith.
  3. 3.Declaration that the 3rd Petitioner was never dismissed, with an order that she resume her official duties as Executive Committee Member in charge of the Ministry of Water, Irrigation and Agriculture forthwith.
  4. 4.Order that the Respondents pay the petitioners full salaries and allowances from 18th September, 2015 to date.
  5. 5.The Respondents shall pay the petitioners costs of this petition.

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 10, 22, 23, 27, 28, 41, 47, 73, 159, 162(2)(a), 177, 178, 179(2)(b), 180, 200, 236
  • County Governments Act, No. 17 of 2012Sections 14(1) and (3), 31(a), 40
  • Employment and Labour Relations Court Act (formerly Industrial Court Act)Section 12(1)
  • Employment Act, 2007Section 2 (definitions of contract of service and employee)
  • Evidence ActSection 35
  • County Assembly of Turkana Standing Orders, 2014Part XI, Order 43

Cases cited (8)

  • County Government of Nyeri & Another v Cecilia Wangechi Ndungu
    [2014] eKLR (also cited as [2015] eKLR)
  • United States International University (USIU) v The Attorney General
    [2013] eKLR (also cited as (2012) eKLR)
  • Prof. Daniel N. Mugendi v Kenyatta University & 3 others
    [2013] eKLR; Civil Appeal No. 6 of 2012
  • Nick Githinji Ndichu v Clerk, Kiambu County Assembly & Another
    [2014] eKLR
  • 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
  • County of Narok case (supra)
Jurisdiction invoked
Article 162(2) of the Constitution and section 12 of the Employment and Labour Relations Court Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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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, "Peter Lokol Lomulen & 2 others v Governor, County Government of Turkana & 3 others [2016] KEELRC 482 (KLR)", Case Analysis (2016). Petition No. 21 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/482/eng@2016-09-15

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