William Kipchirchir Chepkwony v County Government of Kisii & another [2016] KEELRC 821 (KLR)

Employment & Labour Relations Court of Kenya

19 July 2016

DMD. K. Njagi Marete

2,536 words in judgment

View original judgment Read on Kenya Law Watch case

AI-assisted case brief

·~10 min to read original · ~4 min brief

The bottom line

A Kenyan court cancelled a county government employee's interdiction because the official who issued it had no legal authority to do so.

What this practically means

Executive summary

The claimant, formerly Town Clerk of the defunct Municipal Council of Kisii seconded to Kisii County, was interdicted on 21st May 2013 by the Acting/Interim County Secretary, Johnstone O. Ndege, and placed on half salary. He sought a declaration that the interdiction letter ref. Kisii/C/2/15(1) dated 21.05.2013 was null and void ab initio, plus costs. The respondents denied the claim, asserting misconduct including absconding, unauthorized leave, refusal to cooperate with the incoming leadership, and failure to appear for headcounts and biometric registration, which led to his removal from the payroll. They also contended the suit was premature given a pending appeal to the Public Service Commission. The County Public Service Board disclaimed liability as it had not been constituted at the material time. The court framed three issues: validity of the interdiction, whether the Board was non-suited, and costs. Holding that the County Governments Act, 2012 was operational at the time of interdiction, the court found that disciplinary control over seconded officers pending establishment of the County Public Service Board rested with the Public Service Commission or the devolution state department, and that the interdicting officer, not being a creature of the Constitution or statute, lacked capacity; the interdiction was therefore a nullity. The Board was held liable, being an inseverable component of the County Government. The claim was allowed: the interdiction was declared null and void ab initio, the claimant was ordered to resume duty on 20th July 2016, and costs were awarded to the claimant against the respondents.

Key legal issues

Legality of the interdiction of a seconded national government officer by the Acting/Interim County Secretary

Holding

The interdiction was null and void ab initio because disciplinary control over seconded officers lay with the Public Service Commission or the state department responsible for devolution pending constitution of the County Public Service Board, and the interdicting officer lacked constitutional or statutory capacity.

Reasoning

The County Governments Act, 2012 was already operational at the date of interdiction in May 2013, its commencement being upon final announcement of the first election results. The Transition Authority confirmed in writing that disciplinary matters for seconded officers of former local authorities were, pending establishment of the County Public Service Board, the province of the PSC or the devolution state department. The Acting County Secretary was not a creature of the Constitution or statute and therefore lacked capacity to interdict the claimant; the purported interdiction was a nullity.

p. 4

Whether the 2nd respondent (County Public Service Board) was non-suited

Holding

The 2nd respondent was liable because the claim was filed on 25th March 2015, after the Board had been constituted, and the Board is an integral, inseverable component of the 1st respondent.

Reasoning

The Board argued it did not exist at the time of the interdiction and was a stranger to the claim. The court held that the claimant sued at a time when the Board had already been constituted and could not disclaim liability. The Board and the County Government share an umbilical cord that is not severable, as evidenced by their common approach to the defence, so the Board remains liable for the claim.

p. 5

Legal principles established

Before a County Public Service Board is established, disciplinary matters for officers of former local authorities seconded to counties shall be handled by the Public Service Commission or the state department responsible for devolution under delegated authority.
An interdiction effected by an officer without legal capacity, competence and legality is a nullity.

Court orders

1.That the respondent's directive interdicting the Claimant through a letter ref. Kisii/C/2/15 (1) dated 21.05.2013 be and is hereby declared null and void ab initio
2.That the claimant be and is hereby ordered to resume duty/report to work on 20th July, 2016 at 800 hours
3.The costs of the claim shall be borne by the respondents

Authorities

Legislation

Constitution of Kenya, 2010Article 207
Public Finance Management ActSection 109
County Governments Act, 2012Section 138(1)
County Governments Act, 2012Section 138(6)
County Governments Act, 2012Section 59(1)(c)
County Governments Act, 2012Section 1 (commencement)

Jurisdiction invoked: Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Court Act over employment and labour relations claims (memorandum of claim dated 20th March 2015)

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.

NML v Judicial Service Commission & Chief Registrar of the Judiciary (Petition 152 of 2018) [2019] KEELRC 655 (KLR)
[2019] KEELRC 655 (KLR)11 Oct 2019

Cite this brief

Caselaw, "William Kipchirchir Chepkwony v County Government of Kisii & another [2016] KEELRC 821 (KLR)", Case Analysis (2016). Cause No. 107 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/821/eng@2016-07-19

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