Cecilia Wangechi Ndung’u v County Government of Nyeri & another [2016] KEELRC 688 (KLR)
The bottom line
#A Kenyan court ruled Nyeri County unlawfully removed a County Executive Member and ordered it to pay her over Kshs.4.45 million.
What this practically means
#Executive summary
#Key legal issues
#Res judicata
The suit is not res judicata; the removal of 8.04.2015 post-dated the earlier petition and appeal and constituted a new cause of action
The petition judgment (05.12.2014) and appeal judgment (18.03.2015) predated the April 2015 removal. A notice of motion in the petition had already found the removal a new cause of action not decidable by application. The cause of action here sprouts from the 8.04.2015 removal.
Lawfulness of the removal
The removal was unlawful, unfair and unjustified
The governor relied on reasons contained in a letter already quashed by certiorari, and on allegations of poor performance never established under sections 43(1) and 47(5) of the Employment Act. Further, section 46 of the County Governments Act required county executive committee involvement in abolishing a department, which was not shown.
Applicability of the Employment Act to state officers
The Act applies in absence of specific or better terms
The term of service was not stated in the appointment letter and remuneration was set by the SRC. Following Margaret Lorna Kariuki v Embu County Government, where special terms are absent or inferior, the Employment Act's minimum safeguards (valid reasons, notice, hearing) apply by default to state officers.
Remedies
Gratuity of Kshs.1,038,552.30 plus 12 months' gross salary (Kshs.3,412,500.00) as compensation, totalling Kshs.4,451,052.20
Gratuity computed at 31% of basic pay for years served per the SRC Gazette Notice. For lost earnings, 12 months' compensation under section 49 as the statutory maximum, considering service record, lack of contribution, no notice, and the aggravating conduct in defying prior court findings.
Legal principles established
#- A resolution by the county executive committee under section 46 of the County Governments Act is a mandatory precondition before a valid reorganisation abolishing a CEC office; the governor's unilateral decision is not legitimate
- Compensation for lost future earnings from unfair termination is capped at 12 months' gross salary under section 49 of the Employment Act unless the claimant establishes inability to mitigate or a legislative/contractual basis for full payment
- The Employment Act, 2007 applies to state officers where no specific or better contractual/statutory terms exist; inferior special terms trigger the Act's application by default
Court orders
#- 1.The respondent to pay the claimant Kshs.4,451,052.20 by 01.12.2016 failing interest at court rates from the date of judgment till full payment
- 2.The respondent to pay the claimant's costs of the suit
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment disputes; Employment Act, 2007 and County Governments Act, 2012
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Nelson Keshei v Narok County Government & another [2019] KEELRC 612 (KLR)[2019] KEELRC 612 (KLR)27 Sept 2019
Cite this brief
#Cite this brief
Caselaw, "Cecilia Wangechi Ndung’u v County Government of Nyeri & another [2016] KEELRC 688 (KLR)", Case Analysis (2016). Cause No 122 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/688/eng@2016-09-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.