Hesbon Ayuya Oyolo & 2 others v Executive, County Government of Kakamega & another [2016] KEELRC 759 (KLR)
The bottom line
#Kenya's Employment Court ruled three Kakamega workers were unlawfully fired, but because they had worked only five months, each received just two months' salary.
What this practically means
#Executive summary
#Key legal issues
#Identity of the employer
The employer was the Public Service Commission acting through the Town Clerk of the Town Council of Malava, not the Respondent.
The Respondent county government did not exist when the Claimants were appointed on 1st February 2013. The appointment letters referenced approval by the Ministry of Local Government whose existence was not contested. The court therefore found the Claimants were bona fide employees of the Public Service Commission.
Validity of the termination
The termination was unlawful for non-compliance with the Employment Act and regulations governing Public Service Commission employment.
The termination letters relied on circulars halting recruitment, but the circulars did not provide for termination of persons already in service, and no procedure under the Employment Act was followed. The court declared the termination unlawful.
Applicability of section 138 of the County Government Act
The Interested Party's argument that section 138 did not apply failed because it could not prove the absence of authority to employ.
Section 138(1) deems public officers appointed by the PSC before commencement of the Act and serving in a county to be in county service on secondment, with protection of terms. Since the Interested Party failed to discharge its burden of showing the appointing authority did not exist, the argument that the section did not apply was rejected.
Remedies for unfair termination
Each Claimant awarded one month's salary in lieu of notice plus one month's salary as compensation, totalling Shs.72,220 each.
Having served only about five months and earning Shs.36,110 as at June 2013, the Claimants were entitled only to nominal compensation. Section 49(1) entitles unfairly terminated employees to pay in lieu of notice, and the court exercised discretion to add one month's salary as compensation.
Legal principles established
#- Reinstatement under section 49(4) of the Employment Act may only be ordered in exceptional circumstances, which must be proved by the employee.
- The party alleging that an appointment lacked authority bears the burden of proving that allegation; it is not for the employee to prove the appointing authority's authority.
- Public officers appointed by the Public Service Commission before the coming into effect of the County Government Act and serving in a county are deemed to be in the service of the county government on secondment with protection of their terms of service.
Court orders
#- 1.Declaration that the termination of the Claimants was unlawful
- 2.Refusal of reinstatement
- 3.Award of one month's salary in lieu of notice (Shs.36,110) to each Claimant
- 4.Award of one month's salary as compensation to each Claimant
- 5.Each Claimant awarded a total of Shs.72,220
- 6.Dismissal of the case against the Respondent (County Government of Kakamega) with no orders for costs
- 7.Interested Party (Public Service Commission) to pay the Claimants the decretal sum and costs of the suit
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act; County Government Act)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Hesbon Ayuya Oyolo & 2 others v Executive, County Government of Kakamega & another [2016] KEELRC 759 (KLR)", Case Analysis (2016). Claim No. 304 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/759/eng@2016-07-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.