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ELRCPartially AllowedPetition No. 26 of 2015· [2016] KEELRC 823 (KLR)

Jamin Shitsukane Muliru v Governor Wycliff Ambetsa Oparanya & another [2016] KEELRC 823 (KLR)

Employment and Labour Relations Court of Kenya at Kisumu
23 June 2016
2,714 words in judgment
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The bottom line

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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

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Executive summary

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The petitioner, appointed on 14th June 2013 as County Executive Committee Member for Labour, Social Services, Culture, Youth and Sports of Kakamega County on a five-year contract ending 31st December 2017, was terminated without notice by a letter dated 17th March 2015 issued pursuant to section 31(a) of the County Government Act. He petitioned the Employment and Labour Relations Court alleging violations of Articles 27, 41, 47, 50 and 236 of the Constitution, seeking declarations of unconstitutionality, certiorari quashing the removal, reinstatement or, in the alternative, contractual remuneration for the remainder of his term. The respondents argued he was a state officer serving at the Governor's pleasure, removable at any time under section 31(a) without the due process applicable to public officers. Applying the Court of Appeal's decision in County Government of Nyeri v Cecilia Wangechi Ndungu, the court held that the pleasure doctrine is qualified: dismissal must be for reasons making it appropriate or necessary, not arbitrary. The dismissal letter assigned no reason, and the respondents neither proved the allegations later alluded to nor showed the petitioner was made aware of them. The court found the dismissal violated Articles 27(1) and (2), 41, 47(1) and (2) and 50(1) and was unconstitutional. It declined reinstatement and full-term compensation in light of the strained relationship and public interest, awarding instead Shs.3,600,000 (12 months' salary at Shs.300,000 per month), with costs to the petitioner. The petition was thus partially allowed.

Key legal issues

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01

Whether section 31(a) of the County Government Act permits dismissal without reasons or hearing

Holding

No. The discretion to dismiss at any time must be exercised reasonably and on reasons that make the dismissal appropriate or necessary, not arbitrarily.

Reasoning

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.

p. 5
02

Whether the petitioner's constitutional rights to fair labour practices, fair administrative action and a fair hearing were violated

Holding

Yes. Articles 41(1), 47(1) and (2) and 50(1) were violated by the termination without notice, reasons or hearing.

Reasoning

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.

p. 5
03

Whether the court could consider section 40 of the County Government Act though the letter invoked section 31(a)

Holding

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.

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 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. 2.Compensation of the petitioner in the sum of Shs.3,600,000 being 12 months' salary at Shs.300,000 per month
  3. 3.The respondents to pay the petitioner's costs of the petition

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 20(1), 20(2), 23, 27(1) and (2), 30, 41(1), 47(1) and (2), 50(1), 179(2)(b), 179(6) and (7), 236, 260
  • County Government ActSections 31(a), 35, 35(1), 39, 40(1)-(6)

Cases cited (1)

  • The County Government of Nyeri & Anor vs Cecilia Wangeci Ndungu
    Civil Appeal No. 2 of 2015; [2015] eKLR
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

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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, "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.