John Gakuo & another v County Government of Nairobi & another [2016] KEELRC 1819 (KLR)
The bottom line
#A Kenyan court ruled that a county governor cannot dismiss executive committee members without giving reasons, and awarded them substantial compensation.
What this practically means
#Executive summary
#Key legal issues
#Whether the dismissal without reasons complied with section 31(a) of the County Governments Act
The dismissal breached section 31(a) because no reasons were provided
Section 31(a) permits the governor to dismiss a county executive committee member at any time if he considers it appropriate or necessary, distinct from the section 40(1) process requiring a county assembly resolution. Following the Court of Appeal in County Government of Nyeri v Cecilia Wangechi Ndungu and the High Court in Shadrack Wangombe Mubea, the court held that appropriateness or necessity imports reasons. The respondents' replying affidavit supplied no reasons informing the dismissal, so the dismissal was invalid under section 31(a).
Whether the dismissal violated constitutional rights under articles 27(2) and (3), 28, 41 and 50
No constitutional violation proved
The petitioners bore the burden of proving the alleged violations on a balance of probability. Although the dismissal was procedurally flawed under section 31(a), the court found that the dismissal did not ipso facto amount to a breach of the constitutional rights alleged, and the petitioners led no proof discharging that onus. The declaration and certiorari sought on constitutional grounds therefore failed.
Remedies for unlawful dismissal
Compensation of 12 months' gross salary plus gratuity and one month's pay in lieu of notice awarded
Under section 12 of the ELRC Act read with section 49 of the Employment Act, the court could reinstate or award up to twelve months' salary. Considering the circumstances of dismissal without notice or reason, the short service of about one year and three and a half months, the petitioners' ages and dim prospects of equivalent employment, and absence of any contribution by them to the dismissal, the maximum compensation of twelve months was awarded, together with service gratuity at 31% of basic pay and notice pay under section 35(1)(c).
Legal principles established
#- A dismissal under section 31(a) of the County Governments Act requires reasons making the dismissal appropriate or necessary; appropriateness or necessity is not arbitrariness
Court orders
#- 1.Declaration that the 2nd respondent in relieving the petitioners of their duties was in breach of section 31(a) of the County Governments Act No. 17 of 2012
- 2.Award to each petitioner of the equivalent of twelve (12) months gross salary as compensation for unlawful dismissal (Kshs.770,564.00 each)
- 3.Gratuity calculated at 31% of basic salary for the period served, in the sum of Kshs.69,671.00 each
- 4.One month salary in lieu of notice of Kshs.64,213.70 each under section 35(1)(c) of the Employment Act
- 5.Interest at court rates on the award from the date of filing suit till payment in full
- 6.Costs of the suit to the petitioners
- Jurisdiction invoked
- Article 162(2) and Article 23(3) of the Constitution as read with Section 12 of the Employment and Labour Relations Court Act, 2011; consolidated by consent on 30th April 2015
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "John Gakuo & another v County Government of Nairobi & another [2016] KEELRC 1819 (KLR)", Case Analysis (2016). Petition Nos. 167 of 2015 and 168 of 2015 (consolidated). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1819/eng@2016-01-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.