Republic v Evans Odhiambo Kidero (Governor Nairobi County) & another ex-parte Evans Ondieki [2016] KEELRC 779 (KLR)
The bottom line
#A Kenyan court ruled the Nairobi Governor couldn't fire a county executive member without notice, reasons, and a hearing — and ordered full pay for his unfinished contract.
What this practically means
#Executive summary
#Key legal issues
#Whether a Governor may dismiss a county executive committee member under section 31(a) of the County Government Act without due process
No; the power is qualified and must be exercised reasonably, not arbitrarily or capriciously, and due process under Article 236 applies to state officers
The court deferred to the Court of Appeal's decision in Cecilia Wangechi Ndungu, which held that although section 31(a) grants the Governor power to dismiss a CEC member at pleasure, that power is qualified by the requirement of reasonableness and exercise for the public good. A state officer is a public officer protected by Article 236, which prohibits dismissal without due process of law. Section 31(a) is subservient to the Constitution and must be read to preserve due process.
Whether the Fair Administrative Action Act applies to the dismissal
Yes; the Act required written reasons, notice, opportunity to be heard and disclosure of materials relied on before adverse administrative action
Section 4(2) of the Fair Administrative Action Act enjoins the employer to give written reasons for adverse administrative action, and section 4(3) requires notice of the intended action, an opportunity to be heard, a statement of reasons and disclosure of information and materials relied upon. None of these were afforded to the applicant, rendering the dismissal procedurally unfair.
Whether the dismissal was on the merits an arbitrary act attributable to ill motive
Yes; the dismissal was arbitrary, capricious and unreasonable, with the real reason being the applicant's perceived association with Anne Waiguru
The applicant discharged his burden on a balance of probability: no misconduct was ever charged, no reasons were given before or after the removal, and allegations of poor performance emerged only in an unsworn replying affidavit which could not constitute evidence. The court found the real reason for removal was the applicant's association with the former Cabinet Secretary, amounting to arbitrary and capricious conduct by the Governor.
Whether this Court's jurisdiction is ousted because removal of a CEC member is a political process outside the Employment Act
No; the applicant's suit is founded on the Law Reform Act and constitutional provisions, not the Employment Act, and the court has jurisdiction under Article 162(2)(a) and section 12 of the ELRC Act
The respondents relied on Tom Luusa Munyasa and Cecilia Wangechi Ndungu to argue removal is a political process not challengeable under unfair termination law. The court held the applicant does not rely on the Employment Act 2007, so those findings are distinguishable; the applicant challenges unreasonable and unconstitutional conduct, over which this court has jurisdiction by dint of Article 162(2)(a) and section 12 of the ELRC Act.
Legal principles established
#- Section 31(a) of the County Government Act must be read subject to Article 236 of the Constitution and does not exclude due process before removal of a county executive committee member
- The pleasure doctrine in Kenya must be exercised within the enabling statutes and must meet the constitutional thresholds of reasonable, non-arbitrary action
Court orders
#- 1.An order of certiorari to remove to the court and quash the decision of the 1st respondent to dismiss the ex-parte applicant from Nairobi City County as County Executive Committee Member in charge of environment, water, energy, forestry and natural resources made on 26th January 2016
- 2.Compensation to the applicant equivalent to full gross salary, less taxation, for the unserved term of the contract between the applicant and the 1st respondent
- 3.Payment of gratuity at the rate specified in the contract in respect of the served term of the contract
- 4.The respondent to compute the award and file the same in court for consideration within 30 days of the judgment
- 5.The computed award to be paid with interest at court rates from date of judgment till payment in full
- 6.Costs follow the outcome
- Jurisdiction invoked
- Article 162(2)(a) of the Constitution of Kenya 2010 and Section 12 of the Employment and Labour Relations Court Act No. 20 of 2011 as amended by the Misc Amendment Act 2014; judicial review under sections 8 and 9 of the Law Reform Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Evans Odhiambo Kidero (Governor Nairobi County) & another ex-parte Evans Ondieki [2016] KEELRC 779 (KLR)", Case Analysis (2016). Judicial Review Application (substantive notice of motion dated 4th February 2016, ELRC Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/779/eng@2016-08-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.