Wiam Kipchirchir Chepkwony v County Government of Kisii & another [2016] KEELRC 924 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the interdiction of the claimant was lawful and effective
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.
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.
Whether the 2nd respondent (County Public Service Board of Kisii County) was non-suited
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.
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.
Who bears the costs of the claim
The respondents were ordered to bear the costs of the claim following the finding of unlawful interdiction.
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.
Legal principles established
#- 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
#- 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.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
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.