Samuel Kipkoech Keter v County Government of Bomet & 3 others [2016] KEELRC 1497 (KLR)
The bottom line
#A Kenyan court dismissed a former Bomet County Attorney's claim because he couldn't prove his appointment and skipped his own vetting hearing.
What this practically means
#Executive summary
#Key legal issues
#Whether the petitioner's appointment as Bomet County Attorney was regular
The appointment was irregular because the office of County Attorney was not created by statute at the time of the alleged appointment in October 2013, and the petitioner failed to annex the critical letter of appointment dated 7th October, 2013
The petitioner relied on the Bomet County Office of the County Attorney Act, 2014, which post-dated the alleged appointment, indicating the position did not then exist. The letter of appointment dated 7th October 2013 was never annexed, casting a shadow on the genesis, existence and terms of the contract and reducing the petition to a shell.
Whether the petitioner was a political appointee serving at the pleasure of the Governor
The pleasure doctrine no longer applies; on the authority of the Constitution and precedent the petitioner was not a political appointee but an employee amenable to an employer/employee relationship
The court adopted Byram Ongaya J's holdings in Margaret Lorna Kariuki v Embu County Government that the pleasure doctrine and servants-of-the-crown doctrine do not apply under the 2010 Constitution; all public and state officers are servants of the people governed by due process. The petitioner was therefore subject to a normal employer/employee relationship.
Whether the revocation of the petitioner's appointment was wrongful, unfair and unlawful
Although the removal process raised fairness concerns, the petition failed because of the petitioner's own conduct in refusing to attend the vetting process and his failure to prove a valid appointment
The court agreed with the respondents that failure to attend the lawfully notified vetting process rendered the employment vulnerable and lawful termination followed. Authorities of Rika J and Kosgei J were applied that an employee who refuses a disciplinary hearing waives the right to a hearing, making the termination defensible despite procedural objections.
Whether constitutional violations can be determined alongside an ordinary employment dispute
Yes; employment and constitutional rights are intertwined and the choice of procedure does not render a cause defective
The respondents argued the matter was a mere employer/employee relationship with no constitutional violation. The court disagreed, holding the borderline between employment and constitutional rights is very thin and parties may choose their procedure of approaching the court.
Legal principles established
#- The pleasure doctrine does not apply in Kenya's public service under the Constitution of Kenya, 2010; public and state officers are servants of the people governed by due process
- The letter of appointment is a critical document in establishing an employment contract and relationship, and its non-annexure undermines a claim on terms of employment and unfair termination
- An employee who refuses to attend a lawful vetting or disciplinary process waives the right to a hearing, rendering termination permissible
- The borderline between employment and constitutional rights is very thin; the two are intertwined and a party may elect the procedure for approaching the court
Court orders
#- 1.The petition is dismissed
- 2.Each party bears their own costs of the petition
- Jurisdiction invoked
- Articles 41, 47, 251 and related provisions of the Constitution of Kenya, 2010; County Governments Act, 2012; Employment Act, 2007; Bomet County Office of the County Attorney Act, 2014
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Samuel Kipkoech Keter v County Government of Bomet & 3 others [2016] KEELRC 1497 (KLR)", Case Analysis (2016). Petition dated 26th June, 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1497/eng@2016-03-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.