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ELRCPartially AllowedELRC Cause (Siaya) – Statement of Claim dated 18th December 2014· [2017] KEELRC 1647 (KLR)

Francis Okumu Ngesa v County Government of Siaya [2017] KEELRC 1647 (KLR)

Employment and Labour Relations Court
19 January 2017
MOMaureen Onyango
3,914 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled a county governor cannot dismiss a CEC member without reasons and a hearing, awarding 12 months' salary compensation.

What this practically means

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Executive summary

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The Claimant, formerly a County Executive Committee Member of Siaya County Government, was dismissed by the Governor on 21st October 2014 by letter invoking Section 31(a) of the County Governments Act, without stated reasons or a hearing. He claimed declarations that the dismissal violated Articles 10, 47 and 50 of the Constitution, quashing and prohibiting orders, and in the alternative payment of the unexpired four-year term of his contract plus gratuity. The Respondent maintained the Governor had unfettered discretion under Section 31(a), analogising it to the President's power over Cabinet Secretaries. The court framed five issues and held that the law provides two removal modes – County Assembly motion under Section 40 and gubernatorial initiative under Section 31(a) – and that in either case a CEC member, being a state officer, is entitled to fair administrative action and natural justice; the pleasure doctrine has no place under the 2010 Constitution. The dismissal was therefore unfair. Section 41 of the Employment Act was held inapplicable to CEC members, following the Court of Appeal in Cecilia Wangechi. Reinstatement was refused because the position had been filled in December 2014 and the successor was not joined. Payment for the unexpired term was refused as unjust enrichment contrary to the duty to mitigate, following Marete v TSC and Maria Kagai Ligaga. The court awarded compensation equivalent to 12 months' salary plus 31% gratuity for the 11 months served, with costs and interest.

Key legal issues

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01

Mode of dismissal of a County Executive Committee member

Holding

The law provides two modes of removal: by County Assembly motion under Section 40, or on the Governor's own initiative under Section 31(a). The Claimant was removed under Section 31(a).

Reasoning

The court, following the Court of Appeal in Cecilia Wangechi, set out Sections 31 and 40 of the County Governments Act and found two distinct removal modes. The dismissal letter expressly invoked Section 31(a), signed by the Governor with immediate effect, so the removal was under the Governor's own initiative rather than the Assembly route.

p. 6
02

Whether the Governor's power under Section 31(a) is unfettered

Holding

No. Executive power is vested in the people and the pleasure doctrine has no place under the Constitution; a CEC member is a state officer entitled to fair administrative action and natural justice.

Reasoning

Relying on the Court of Appeal's decision in Cecilia Wangechi, the court held that executive authority derives from the people. CEC members' terms are regulated by the Constitution, statute, principles of fair administrative action and natural justice, so even a Section 31(a) dismissal requires observance of those principles.

p. 7
03

Whether the dismissal was lawful

Holding

The dismissal was unfair for failure to observe fair administrative action and natural justice; no reasons were stated and no hearing was given.

Reasoning

The Claimant was never informed of the grounds of dismissal or given a hearing. The Respondent's witness alluded to public complaints but produced none in court and could not mention any specific complaint, leading the court to conclude the dismissal violated the principles of fair administrative action and natural justice.

p. 7
04

Whether Section 41 of the Employment Act applies

Holding

Section 41 of the Employment Act is not applicable to a CEC member, though it embodies fair administrative action and natural justice.

Reasoning

Following the Court of Appeal in Cecilia Wangechi, the court held that CEC members are not subject to the Employment Act's disciplinary procedure. However, the court noted that Section 41's content mirrors the principles of fair administrative action and natural justice that did apply to this removal.

p. 7
05

Remedies

Holding

Reinstatement and payment for the unexpired term were refused; compensation equivalent to 12 months' salary plus 31% gratuity for 11 months served was awarded under Article 23(3).

Reasoning

Reinstatement was impracticable as the position had been filled and the replacement was not joined. Payment for the unexpired term was rejected as unjust enrichment contrary to the mitigation principle, following Marete v TSC and Maria Kagai Ligaga. The court awarded statutory-maximum compensation of 12 months' gross salary plus gratuity for the period served.

p. 8

Legal principles established

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  • The pleasure doctrine has no place under the new Constitutional dispensation of Kenya; executive power is vested in the people and is exercised on their behalf
  • A County Executive Committee member removed under Section 31(a) is still entitled to fair administrative action and rules of natural justice
  • An aggrieved employee has an obligation to mitigate losses and cannot sit back waiting for anticipatory remuneration for the unexpired contract term

Court orders

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  1. 1.Claimant awarded compensation equivalent to 12 months salary
  2. 2.Respondent to pay 31% gratuity for the period served from 21st November 2013 to 21st October 2014 (11 months)
  3. 3.Respondent to pay the Claimant's costs of the suit
  4. 4.Decretal sum to attract interest at court rates from date of judgment

Authorities

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Legislation

  • Constitution of KenyaArticles 10, 47, 50, 179(1), 152(5), 132(2)(a), 200, 200(c), 23(3), Chapter 11
  • County Governments ActSections 30(a), 31(a), 34, 40
  • Employment ActSections 17, 41

Cases cited (11)

  • ABBOT AND SULLIVAN
    (1952) IKB 189
  • GRACE KAZUNGU AND ANOTHER -VS- NSSF
    Cause No.703 of 2010
  • J.C. OYIENG V PERMANENT SECRETARY MINISTRY OF ECONOMIC PLANNING AND DEVELOPMENT
    Misc. Civil Application 282 of 1982 (Nai)
  • J.M. OCHEYO V THE ATTORNEY GENERAL
    Civil Case No.4559 of 1988
  • BEATRICE ACHIENG OSIR -VS- BOARD OF TRUSTEE TELEPOSTA PENSION SCHEME
    ELRC Cause No.665 of 2011
  • HENRY MURWA MUSEMATE -VS- THE PUBLIC SERVICE COMMISSION & ANOTHER
    ELRC Cause No.354 of 2014
  • HON. EVANS ODHIAMBO KIDERO -VS- NAIROBI COUNTY GOVERNMENT
    J.R. No. 4 of 2016 – Nairobi
  • THE COUNTY GOVERNMENT OF NYERI & ANOTHER -VS- CECILIA WANGECHI NDUNG'U
    [2015] eKLR; C.A. No.2 of 2015 – Nyeri
  • REPUBLIC V. EVANS KIDERO (GOVERNOR NAIROBI COUNTY) & ANOTHER EX PARTE EVANS ONDIEKI
    2016 (eKLR)
  • MENGINYA S. SALIM V. CENTRAL BANK OF KENYA
  • Maria Kagai Ligaga
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment dispute; remedies under Article 23(3) of the Constitution

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, "Francis Okumu Ngesa v County Government of Siaya [2017] KEELRC 1647 (KLR)", Case Analysis (2017). ELRC Cause (Siaya) – Statement of Claim dated 18th December 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2017/1647/eng@2017-01-19

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