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ELRCDismissedPetition dated 26th June, 2015· [2016] KEELRC 1497 (KLR)

Samuel Kipkoech Keter v County Government of Bomet & 3 others [2016] KEELRC 1497 (KLR)

Employment and Labour Relations Court of Kenya
16 March 2016
5,153 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The petitioner, an advocate formerly serving as Special Advisor to the Governor of Bomet and thereafter purportedly appointed County Attorney effective 1st July 2013, petitioned for declarations that his appointment's revocation by letter dated 16th June 2015 was unlawful and ultra vires Section 12 of the Bomet County Office of the County Attorney Act, 2014, together with orders of certiorari, mandamus, mandatory and permanent injunctions, reinstatement and payment of salary, emoluments and general damages. He invoked Articles 27, 28, 41, 47, 50, 73, 75, 76 and 251 of the Constitution, contending the pleasure doctrine was inapplicable under the 2010 Constitution. The respondents opposed, arguing the office of County Attorney had not been established under Section 5 of the 2014 Act at the time of appointment, the petitioner failed to annex the letter of appointment dated 7th October 2013, he was a political appointee, and his refusal to attend vetting defeated his claim. The court framed five issues and held that the appointment was irregular because the position did not statutorily exist in 2013 and the critical appointment letter was never produced, reducing the petition to a shell. It held, following Ongaya J in Margaret Lorna Kariuki, that the pleasure doctrine does not survive the 2010 Constitution, so the petitioner was not a political appointee, but remained subject to an ordinary employer/employee relationship. The petitioner's refusal to attend the vetting process waived his right to a hearing and justified the termination. The petition was dismissed with each party bearing their own costs, delivered on 16th March 2016 by D.K. Njagi Marete J.

Key legal issues

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01

Whether the petitioner's appointment as Bomet County Attorney was regular

Holding

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

Reasoning

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.

p. 8
02

Whether the petitioner was a political appointee serving at the pleasure of the Governor

Holding

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

Reasoning

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.

p. 6
03

Whether the revocation of the petitioner's appointment was wrongful, unfair and unlawful

Holding

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

Reasoning

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.

p. 9
04

Whether constitutional violations can be determined alongside an ordinary employment dispute

Holding

Yes; employment and constitutional rights are intertwined and the choice of procedure does not render a cause defective

Reasoning

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.

p. 8

Legal principles established

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  • 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

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  1. 1.The petition is dismissed
  2. 2.Each party bears their own costs of the petition

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 1, 6, 10, 27, 28, 41, 47, 50, 73, 75, 76, 129, 251 and Preamble
  • Bomet County Office of the County Attorney Act, 2014Sections 5 and 12
  • County Governments Act, 2012Sections 58, 75 and 77
  • Employment Act, 2007Sections 41, 45, 46 and 51

Cases cited (7)

  • Margaret Lorna Kariuki v Embu County Government (2015) eKLR
    (2015) eKLR
  • Richard Bwogo Birir v Narok County Government and 2 Others (2014) eKLR
    (2014) eKLR
  • Cecilia Wangechi Ndungu v The County Government of Nyeri and Another (2014) eKLR
    (2014) eKLR
  • Mundia Njeru Geteria v Embu County Government & 3 Others (2013) eKLR
    (2013) eKLR
  • Abbot v Sullivan (1952) 1 KB 189
    (1952) 1 KB 189
  • John Mose Amiga v Dominion Vegefruits Ltd Industrial Cause No. 77 of 2012
    Industrial Cause No. 77 of 2012
  • Jared Aimba v Fina Bank Ltd Industrial Cause No. 525 (N) of 2009
    Industrial Cause No. 525 (N) of 2009
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

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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, "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.