Samuel Kipkoech Keter v County Government of Bomet & 3 others [2016] KEELRC 1530 (KLR)

The court adopted the reasoning of Byram Ongaya, J in Margaret Lorna Kariuki v Embu County Government (2015) eKLR, which relied on Richard Bwogo Birir v Narok County Government and Cecilia Wangechi Ndungu v County Government of Nyeri. It held that under Articles 1, 10, 73 and 129, executive authority derives from the people and no public officer serves another but the people. Accordingly the petitioner was not a political appointee and the respondent could not invoke the pleasure doctrine to justify removal.

The petitioner relied on the 2014 Act as authority for his office, but the appointment allegedly occurred in October 2013 when no statute established the office. The petitioner also failed to annex the letter of appointment dated 7th October 2013 said to have been backdated to 1st July 2013, weakening proof of the contractual relationship. The respondents argued the office had not been established by the County Public Service Board under Section 5 of the Act, making any appointment illegal ab initio.

The court relied on John Mose Amiga v Dominion Vegefruits Ltd and Jared Aimba v Fina Bank Ltd, where employees who refused to attend disciplinary hearings were held to have made civil disciplinary hearings impossible and waived their right to be heard. The petitioner, an advocate, declined the invitation to vetting. The court agreed with the respondents that this refusal to attend the lawfully notified vetting process rendered the employment vulnerable and supported lawful termination.

The respondents argued the dispute was an ordinary employer/employee matter and that constitutional violations did not arise. The court disagreed, holding that employment and constitutional rights are intertwined and that parties have a choice of procedure and methodology in approaching a court, which does not render a cause defective. Nevertheless the petition failed on proof and conduct.