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ELRCPartially AllowedPetition filed 24.05.2016 (number not stated in judgment)· [2016] KEELRC 932 (KLR)

Hussein Roba Boru v County Government of Isiolo & 3 others [2016] KEELRC 932 (KLR)

Employment and Labour Relations Court of Kenya
22 July 2016
3,056 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court blocked a county secretary's suspension of a public service board chairman, ruling only a statutory process—not county officials—can discipline board members.

What this practically means

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Executive summary

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The petitioner, chairman of the Isiolo County Public Service Board, was suspended by the 2nd respondent, the County Secretary, by letter dated 25.04.2016, citing a pending criminal case. He moved the court under Article 23(3) of the Constitution and section 12(3) of the Industrial Court Act, 2011 seeking injunctions and prohibition against the suspension and against interference with his duties. The respondents opposed, arguing under section 133 of the County Governments Act, 2012 that the 2nd and 3rd respondents enjoyed personal civil immunity and were improper parties. The court framed two issues. First, it held that the 2nd and 3rd respondents were proper parties because the petitioner's unrebuted affidavit disclosed a reasonable cause of action against them in their private capacity, section 133 applying only to good-faith acts. Second, it held the suspension was prima facie illegal: the county secretary heads the county public service but not the board, and section 58(5) of the Act is the exclusive procedure for discipline of board members; the invoked discipline regulations applied only to seconded officers. The court applied its Geoffrey Mworia principles on interference with human resource functions and found a prima facie case with a high likelihood of success and irreparable prejudice. The application was allowed in part: injunctions and prohibition issued against the suspension, which was stayed; prayers 4 and 5 (restraint on board recruitments and police enforcement) were declined; board members were directed to file a good corporate governance memorandum by 01.09.2016. Costs of the application were awarded to the petitioner against the respondents jointly or severally.

Key legal issues

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01

Whether the 2nd and 3rd respondents are proper parties given section 133 of the County Governments Act, 2012

Holding

They are proper parties; immunity under section 133 applies only to acts done in good faith, which is a matter for the full hearing

Reasoning

The grounds and supporting affidavit make specific allegations of interference, irregular deployments and sabotage against the 2nd and 3rd respondents in their private capacity, which they did not rebut by affidavit. Section 133 immunity depends on good faith in execution of duty, which cannot be determined at the interlocutory stage; a reasonable cause of action against them was disclosed.

p. 3
02

Whether the suspension letter dated 25.04.2016 was lawfully issued

Holding

The suspension was prima facie illegal: the county secretary had no power of disciplinary control over board members, and the invoked PSC discipline regulations applied only to seconded officers

Reasoning

The county secretary heads the county public service, not the board; disciplinary control of board members lies exclusively under section 58(5). Regulation 2(b) of the PSC and County Assembly Boards discipline regulations applies only to national government officers seconded to counties, which the petitioner was not. The suspension letter was therefore founded on misdirection and misconception.

p. 4
03

Whether the petitioner was entitled to interlocutory relief

Holding

Yes - a prima facie case with high likelihood of success and irreparable prejudice was demonstrated

Reasoning

Applying the principles in Geoffrey Mworia v WRMA, the court held that the applicant satisfied the justification for interference because the suspension was issued without authority or legal basis. The petitioner would suffer irreparable prejudice of being kept out of office in circumstances where the suspension is prima facie illegal.

p. 4

Legal principles established

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  • Section 56(2) of the County Governments Act does not vest disciplinary control over the chairperson and members of the County Public Service Board in the county secretary; section 58(5) is the exclusive manner of removal/discipline of board members
  • A county public service board is a body corporate with autonomy, independent of the county government it serves
  • Courts interfere sparingly with employers' human resource functions unless there is constitutional or statutory contravention, breach of agreement, manifest unfairness, or exhausted/unworkable internal processes

Court orders

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  1. 1.Temporary injunction and order of prohibition restraining the 1st-4th respondents from effecting, implementing or acting on the suspension letter dated 25.04.2016 pending hearing and determination of the petition, the operation of the letter being stayed
  2. 2.Temporary injunction and order of prohibition restraining the respondents from preventing, restricting or interfering with the petitioner in the performance of his duties as chairperson of the 4th respondent pending hearing and determination of the petition
  3. 3.Direction that the members of the 4th respondent file and serve, not later than 01.09.2016, a memorandum of resolutions signed by each member on measures of good corporate governance in accordance with Chapter Six of the Constitution and sections 57, 56 and 59 of the County Governments Act, 2012
  4. 4.Respondents jointly or severally to pay the costs of the application
  5. 5.Parties invited to take directions on further steps towards the hearing and determination of the main petition
Jurisdiction invoked
Articles 23(3) of the Constitution and section 12(3) of the Industrial Court Act, 2011

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, "Hussein Roba Boru v County Government of Isiolo & 3 others [2016] KEELRC 932 (KLR)", Case Analysis (2016). Petition filed 24.05.2016 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/932/eng@2016-07-22

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