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ELRCPartially AllowedPetition filed 7 April 2016 (Kisumu) - ruling on Notice of Motion dated 7 April 2016· [2016] KEELRC 938 (KLR)

Philgona Atieno Ooko v Governor Siaya County & 4 others [2016] KEELRC 938 (KLR)

Employment and Labour Relations Court
15 July 2016
1,256 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

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A county governor cannot simply sack a County Executive Committee member with a termination letter - courts will preserve their office until due process is followed.

What this practically means

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Executive summary

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The Petitioner, Philgona Atieno Ooko, was appointed in November 2013 by the Governor of Siaya County as County Executive Committee Member for Agriculture, Livestock and Fisheries for a five-year term. By a letter dated 29 March 2016, the Governor relieved her of her duties with immediate effect, offering one month's gross pay in lieu of notice under section 36 of the Employment Act 2007 and gratuity under section 35(5). She filed a Petition in Kisumu alleging violation of her constitutional rights, together with a motion for conservatory orders. The Court noted that the primary statute governing appointment and terms of CEC members is the County Governments Act, with the Employment Act filling only voids, and that public officers enjoy protections of fair labour practices (Article 41(1)), fair administrative action (Article 47) and due process before removal (Article 236(b)). Cautioning itself not to determine the merits at the interlocutory stage, the Court examined the replying affidavit and termination letter and could not discern any fair process in the removal. Guided by the Court of Appeal decisions in County Government of Nyeri v Cecilia Wangechi Ndungu and Narok County Government v Richard Bwogo Birir, and by the Supreme Court's test in Gatirau Peter Munya v Dickson Mwendwa Kithinji that conservatory orders serve public law ends and rest on the inherent merit of the case, the Court granted conservatory orders preserving the Petitioner in office and an injunction barring appointment of a replacement pending trial. Directions were issued for the filing of pleadings and submissions. Costs in the cause.

Key legal issues

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01

Whether conservatory orders should issue to preserve the Petitioner in office pending trial

Holding

Yes - applying the Supreme Court's test in Gatirau Peter Munya and considering that the Respondents had not demonstrated fair process, the Court granted conservatory orders and an injunction preserving the status quo

Reasoning

The Court cautioned itself not to determine the merits at this interlocutory stage but found the replying affidavit and termination letter disclosed no process amounting to fair labour practice or due process under Articles 41(1), 47 and 236(b). Guided by the Court of Appeal decisions on removal of CEC members and the Supreme Court's conservatory orders test, it held the Petitioner had satisfied the test and granted orders preserving her office and barring appointment of a replacement pending determination.

p. 3
02

Which statute governs the appointment and removal of County Executive Committee members

Holding

The County Governments Act is the primary statute; the Employment Act 2007 applies only to fill voids

Reasoning

The Court held that appointment and terms and conditions of CEC members are governed primarily by the County Governments Act, with the Employment Act coming into play only where there are voids. This framed the legal basis on which the Governor's reliance on sections 35(5) and 36 of the Employment Act in the termination letter was viewed at the interlocutory stage, alongside the constitutional protections for public officers.

p. 3

Legal principles established

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  • The primary statute governing the appointment and terms and conditions of County Executive Committee members is the County Governments Act and not the Employment Act, 2007, which applies only to fill voids
  • Conservatory orders bear a public law connotation and are granted on the inherent merit of the case, bearing in mind public interest, constitutional values and proportionate magnitudes

Court orders

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  1. 1.A conservatory order restraining and/or prohibiting the 1st Respondent from terminating the service of the Petitioner as Executive Committee Member, Agriculture, Livestock and Fisheries, County Government of Siaya pending hearing and determination of the Petition
  2. 2.A conservatory order protecting, preserving and/or conserving the status of the Petitioner as the Executive Committee Member for Agriculture, Livestock and Fisheries, County Government of Siaya pending hearing and determination of the Petition
  3. 3.An order of injunction prohibiting and/or restraining the 1st Respondent from appointing, proposing and/or constituting any other person as the Executive Committee Member for Agriculture, Livestock and Fisheries, County Government of Siaya pending hearing and determination of the Petition
  4. 4.The Respondents to file and serve an Answer to Petition and any other appropriate process before 29 July 2016
  5. 5.The Petitioner to file and serve any reply thereto and written submissions before 12 August 2016
  6. 6.The Respondents to file and serve their written submissions before 26 August 2016
  7. 7.Submissions to be highlighted on a date convenient to the Court and parties

Authorities

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Legislation

  • Constitution of Kenya 2010Article 41(1)
  • Constitution of Kenya 2010Article 47
  • Constitution of Kenya 2010Article 236(b)
  • County Governments ActNot specified
  • Employment Act, 2007Sections 35(5) and 36

Cases cited (3)

  • County Government of Nyeri & Ar v Cecilia Wangechi Ndungu
    (2015) eKLR
  • Narok County Government & Ar v Richard Bwogo Birir & Ar
    (2015) eKLR
  • Gatirau Peter Munya v Dickson Mwendwa Kithinji & 2 others
    (2014) eKLR
Jurisdiction invoked
Original constitutional jurisdiction under Articles 41(1), 47 and 236(b) of the Constitution of Kenya 2010 (Petition alleging violation of constitutional rights)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Philgona Atieno Ooko v Governor Siaya County & 4 others [2016] KEELRC 938 (KLR)", Case Analysis (2016). Petition filed 7 April 2016 (Kisumu) - ruling on Notice of Motion dated 7 April 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/938/eng@2016-07-15

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