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ELRCAllowedCause No. 107 of 2015· [2016] KEELRC 924 (KLR)

Wiam Kipchirchir Chepkwony v County Government of Kisii & another [2016] KEELRC 924 (KLR)

Employment & Labour Relations Court of Kenya
19 July 2016
2,509 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kisii County officer's interdiction was struck down because the official who issued it had no legal power to discipline a seconded national government officer.

What this practically means

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Executive summary

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The claimant, a former Town Clerk of the defunct Municipal Council of Kisii who rose through the national government public service from 1997, was interdicted on 21st May 2013 by the Interim County Secretary of Kisii County shortly after the 2013 general election. He complained of harassment and frustration during the transition to devolution, including forceful removal from a county house, exclusion from the transition team, failure to designate him a revenue collector and spender, and placement 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, alleging the claimant refused to cooperate with the incoming leadership, destroyed or hoarded records, absconded duty, took unauthorized leave, and failed to appear for headcount and biometric registration exercises, which led to removal from the payroll. The 2nd respondent also claimed it was non-suited as it did not exist at the material time. The court framed three issues: nullity of the interdiction, the 2nd respondent's suability, and costs. Relying on the Transition Authority's letter of 26th July 2013 and Sections 138(1) and 138(6) of the County Governments Act 2012, the court held that the claimant was a seconded officer whose disciplinary control lay with the Public Service Commission before the County Public Service Board was constituted, and that the interdicting officer lacked capacity; the interdiction was therefore a nullity. The 2nd respondent was held liable as it had been constituted by the time the suit was filed. The claim was allowed with costs, the interdiction declared null and void ab initio, and the claimant ordered to report to duty on 20th July 2016.

Key legal issues

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01

Whether the interdiction of the claimant was lawful and effective

Holding

The interdiction was a nullity for want of capacity, competency and legality; the Acting County Secretary lacked power to interdict a seconded officer whose disciplinary matters belonged to the Public Service Commission before the County Public Service Board was constituted.

Reasoning

The court held that the County Governments Act 2012 was already operational at the time of the interdiction in May 2013. Under Sections 138(1) and 138(6) of that Act, the claimant, an officer of the defunct Municipal Council of Kisii, was deemed seconded from the national government, and disciplinary control vested in the Public Service Commission until the County Public Service Board was established. The Transition Authority's letter of 26th July 2013 recited this position. The interdicting officer was not a creature of the Constitution or statute, hence the interdiction was unlawful.

p. 5
02

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

Holding

The 2nd respondent was liable because at the time of filing the suit in March 2015 it had been constituted, and it is an integral component of the 1st respondent.

Reasoning

The 2nd respondent argued it did not exist at the time of the interdiction and took no part in it. The court accepted the claimant's reply that the Board had been constituted by the time the claim was filed on 25th March 2015, and further observed that the Board is structurally inseparable from the County Government, as evidenced by their common approach to the defence.

p. 5
03

Who bears the costs of the claim

Holding

The respondents were ordered to bear the costs of the claim following the finding of unlawful interdiction.

Reasoning

Having succeeded on the claim for a declaration that the interdiction was null and void ab initio, the claimant was awarded costs against the respondents in the ordinary course. The court framed costs as the third issue and resolved it in the final orders.

p. 5

Legal principles established

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  • Disciplinary matters relating to officers seconded from the national government to county governments fall within the province of the Public Service Commission of Kenya before the County Public Service Board is established, and an interdiction by an officer without constitutional or statutory capacity is a nullity.

Court orders

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

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 207
  • County Governments Act, 2012Sections 1, 59(1)(c), 138(1), 138(6)
  • Public Finance Management ActSection 109
Jurisdiction invoked
Employment and labour relations jurisdiction of the Employment & Labour Relations Court (Article 162(2) of the Constitution, implied); claim brought by Memorandum of Claim

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, "Wiam Kipchirchir Chepkwony v County Government of Kisii & another [2016] KEELRC 924 (KLR)", Case Analysis (2016). Cause No. 107 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/924/eng@2016-07-19

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