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ELRCPartially AllowedPetition No. 5 of 2015 (as stated on the face of the petition filed 12.05.2015)· [2016] KEELRC 697 (KLR)

Fredrick Njeru Kamunde v Tharaka Nithi County Government & another [2016] KEELRC 697 (KLR)

Employment and Labour Relations Court
23 September 2016
BOByram Ongaya
4,585 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled a governor cannot demote or remove a duly appointed County Secretary by reshuffle; he must follow proper dismissal procedures.

What this practically means

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Executive summary

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The petitioner, Dr. Fredrick Njeru Kamunde, was seconded by the Transitional Authority as Interim County Secretary of Tharaka Nithi County and, in August 2014, substantively appointed to that office by the Governor under section 44 of the County Governments Act, 2012 on a five-year contract. By a circular dated 24th April 2015, the Governor reshuffled Chief Officers, designating one Ahmed Hemed as County Secretary in an acting capacity and deploying the petitioner as Director of Education in charge of ECDE and Vocational Training. The petitioner petitioned the Employment and Labour Relations Court at Nyeri alleging contravention of Articles 10, 41, 47, 73 and 227 of the Constitution and breach of his employment contract, seeking declarations, certiorari and permanent injunctions. The court, on agreed issues, held that the Governor had no statutory or constitutional authority to reassign or deploy a substantively appointed county secretary by way of reshuffle, his tenure being terminable only through dismissal under section 44(2)(c) of the Act with due process; that reorganization of county departments under section 46 is a function shared with the county executive committee, which was bypassed; that the deployment was an unreasonable, adverse administrative decision amounting to a demotion and constructive termination without reasons, contrary to Articles 10, 236, 47 and sections 41 and 43 of the Employment Act; and that the acting appointment of Hemed was null and void for want of a vacancy. Declarations were granted to that effect, certiorari issued quashing the circular in so far as it affected the petitioner, who reverted to his office, and permanent injunctions issued. Damages and the Article 73(2) declaration were declined for lack of submissions. The petitioner, having substantially succeeded, was awarded costs.

Key legal issues

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01

Whether the Governor could lawfully reshuffle/deploy the substantively appointed County Secretary

Holding

No. The Governor's power to reassign extends to chief officers under section 45(5), not the county secretary, whose tenure may end only through dismissal under section 44(2)(c) with due process.

Reasoning

Section 44(2)(c) of the County Governments Act provides only for dismissal by the governor subject to the terms of appointment; there is no provision for ending a county secretary's tenure by reassignment. The power to reassign chief officers under section 45(5) does not extend to the county secretary, and even for chief officers reassignment is limited to deployment to another chief officer portfolio, not demotion to a director's position. The deployment therefore lacked legal basis.

p. 4
02

Whether the Governor acted unilaterally in reorganizing county departments

Holding

Yes. The power to reorganize departments is shared between the Governor and the county executive committee under sections 30(2)(e) and 46, and it was not shown the committee discharged its role before the reshuffle of 24.04.2015.

Reasoning

Section 30(2)(e) empowers the governor to constitute the portfolio structure, while section 46 requires the county executive committee to determine the organization of the county and its departments, guided by enumerated principles. Since the committee's statutory role was not shown to have been performed prior to the reorganization, the Governor appeared to have acted unilaterally contrary to section 46.

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Whether the reshuffle breached the petitioner's contract and constitutional rights

Holding

Yes. The deployment amounted to a demotion and constructive, unlawful termination of a five-year contractual tenure, contravening Articles 10, 47 and 236 of the Constitution and sections 41 and 43 of the Employment Act, 2007.

Reasoning

The petitioner was appointed for a definite five-year term to a specific office; the reshuffle terminated that tenure without the safeguards of fair administrative action, written reasons, notice and hearing, and valid reasons for termination. The acting appointment of Mr. Ahmed Hemed also lacked legal basis as there was no vacancy. The allegations of misconduct against the petitioner were not handled with due process and were not relied on to justify the reshuffle.

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Legal principles established

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  • The governor has no power to remove or reassign a substantively appointed county secretary by way of reshuffle; dismissal is only under section 44(2)(c) of the County Governments Act with due process.
  • County governors and executive committees do not enjoy inherent executive powers outside legislative provisions.
  • Reorganization of county departments is a shared function of the governor and the county executive committee under section 46 of the County Governments Act.
  • The office of county secretary is not excluded from the application of the Employment Act, 2007.

Court orders

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  1. 1.Declaration that the respondents contravened the petitioner's rights under Article 47 of the Constitution to fair administrative action by purporting to vary his terms of service without his consent and without written reasons
  2. 2.Declaration that the reshuffle of 24th April 2015 is, in so far as it affected the petitioner, null and void for contravening Article 47 and breaching the contract of 22nd August 2014
  3. 3.Declaration that the 2nd respondent, in making the reshuffle in so far as the petitioner was affected, offended the national values and principles under Article 10, namely failing to uphold rule of law and human rights
  4. 4.Order of certiorari quashing the circular dated 24th April 2015 in so far as it affected the petitioner, and the petitioner reverts to the office of county secretary unless lawfully removed per applicable constitutional, statutory and contractual provisions
  5. 5.Permanent injunction restraining the respondents from contravening Articles 10 and 47 of the Constitution
  6. 6.Permanent injunction restraining the respondents from advertising, nominating or appointing anyone to the post of County Secretary for as long as the petitioner holds that office
  7. 7.Respondents to pay the petitioner's costs of the suit

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 2, 10, 41, 47, 73, 174, 179(1), 179(2), 179(5), 179(6), 183(1), 183(2), 227, 236
  • County Governments Act, 2012Sections 30, 30(2)(e), 31, 44, 44(1)(c), 44(2)(b), 44(2)(c), 44(3), 45(5), 46, 58(1), 64(1), 64(2)
  • Employment Act, 2007Sections 3, 3(5), 41, 43

Cases cited (2)

  • Mundia Njeru Gateria – Versus- Embu County Government and 3 Others
    [2015]eKLR
  • Margaret Lorna Kariuki –Versus- Embu County Government
    [2015]eKLR
Jurisdiction invoked
Constitution of Kenya, 2010 (Articles 2, 10, 41, 47, 73 and 227 invoked in the petition); County Governments Act, 2012; Employment Act, 2007

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, "Fredrick Njeru Kamunde v Tharaka Nithi County Government & another [2016] KEELRC 697 (KLR)", Case Analysis (2016). Petition No. 5 of 2015 (as stated on the face of the petition filed 12.05.2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/697/eng@2016-09-23

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