Jamin Shitsukane Muliru v Governor Wycliff Ambetsa Oparanya & another [2016] KEELRC 823 (KLR)
The bottom line
#A Kenyan court ruled that even county officials serving 'at the Governor's pleasure' cannot be fired without reasons or a fair process.
What this practically means
#Executive summary
#Key legal issues
#Whether section 31(a) of the County Government Act permits dismissal without reasons or hearing
No. The discretion to dismiss at any time must be exercised reasonably and on reasons that make the dismissal appropriate or necessary, not arbitrarily.
Relying on the Court of Appeal's analysis of the pleasure doctrine in Cecilia Wangechi Ndungu, the court held that while the Governor may dismiss without a disciplinary hearing, appropriateness or necessity imports the existence of reasons. Where the Governor does not inform the CEC member why dismissal was appropriate or necessary, the dismissal is arbitrary. The respondents neither stated the circumstances of the dismissal nor proved the allegations later alluded to in the affidavits.
Whether the petitioner's constitutional rights to fair labour practices, fair administrative action and a fair hearing were violated
Yes. Articles 41(1), 47(1) and (2) and 50(1) were violated by the termination without notice, reasons or hearing.
Article 41(1) guarantees fair labour practices and Article 47 guarantees lawful, reasonable and procedurally fair administrative action, including written reasons for adverse action. The dismissal letter assigned no reason and no proof was given of allegations of political misconduct or that the petitioner was made aware of them. The dismissal was therefore a contravention of those rights and unconstitutional, also engaging Articles 27 and 23.
Whether the court could consider section 40 of the County Government Act though the letter invoked section 31(a)
Yes. Because the dismissal letter did not reference section 31(a), the court could consider all relevant provisions including section 40's grounds for removal.
The letter did not cite section 31(a), so the respondents could not confine the court to that provision. The court was entitled to consider section 40, which sets out grounds and a procedure for removal involving the county assembly, none of which was followed here.
Legal principles established
#- The Governor's power under section 31(a) of the County Government Act to dismiss a CEC member at pleasure is qualified and must be exercised reasonably and not arbitrarily
- A dismissal without valid reason and without observance of natural justice is arbitrary and unreasonable and unconstitutional
Court orders
#- 1.A declaration that the termination and removal of the petitioner as Executive Committee Member for Labour, Social Services, Culture, Youth and Sports vide the 1st respondent's public pronouncement and letter dated 17th March 2015 violates the petitioner's constitutional rights under Articles 27(1) and (2), 41, 47(1) and (2), 50(1) and 23(1) of the Constitution and is unconstitutional
- 2.Compensation of the petitioner in the sum of Shs.3,600,000 being 12 months' salary at Shs.300,000 per month
- 3.The respondents to pay the petitioner's costs of the petition
- Jurisdiction invoked
- Articles 23, 27, 30, 41, 47, 50 and 236 of the Constitution; employment and labour relations jurisdiction of the Employment and Labour Relations Court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jamin Shitsukane Muliru v Governor Wycliff Ambetsa Oparanya & another [2016] KEELRC 823 (KLR)", Case Analysis (2016). Petition No. 26 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/823/eng@2016-06-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.