John Mwaniki v Joshua Irungu & another [2017] KEELRC 1891 (KLR)
The bottom line
#A Kenyan Governor cannot discipline or send a County Secretary on compulsory leave; that power belongs to the County Public Service Board, and the Governor paid costs personally.
What this practically means
#Executive summary
#Key legal issues
#Whether a Governor may exercise direct disciplinary control over a County Secretary
No; by virtue of being head of the county public service, the County Secretary falls under the disciplinary control of the County Public Service Board under section 59 of the County Governments Act
Section 44(2)(c) gives the Governor power of dismissal but subject to terms and conditions of appointment. Section 56(2) makes the County Secretary head of the county public service, and section 59(1)(c) vests disciplinary control over persons holding county public offices in the County Public Service Board. Allowing the Governor to be complainant, investigator and judge would offend Article 236 and Article 41 protections.
Whether sending the Claimant on compulsory leave was lawful
The action was devoid of legal and/or contractual basis and was null and void
The offer of appointment made no provision for disciplinary control or compulsory leave. Under common law, suspension without contractual or statutory basis is unlawful; the same principles apply to compulsory leave imposed on a public official. The Respondents disclosed no statutory or contractual authority for the Governor's action.
Whether costs and damages should be borne personally by the 1st Respondent
Yes; the 1st Respondent was ordered to pay nominal damages of Kshs 1/- and the Claimant's costs personally
The 1st Respondent neither in pleadings nor in evidence disclosed the legal, statutory or contractual authority for his action. In consideration of national values of good governance, transparency and accountability and responsibilities of leadership and integrity, the Court held him personally liable.
Legal principles established
#- A Governor has no power and cannot exercise direct disciplinary control over a County Secretary; disciplinary control over the County Secretary vests in the County Public Service Board
- Suspension or compulsory leave of an employee without contractual or statutory basis is unlawful and a breach of contract
- Allowing a Governor to be complainant, investigator and judge over the County Secretary would breach Article 236 protections, Article 41 fair labour practices and section 59 of the County Governments Act
Court orders
#- 1.Declared that a Governor has no and cannot exercise direct disciplinary control over a County Secretary
- 2.Declared that the sending of the Claimant on compulsory leave by the 1st Respondent had no legal or contractual basis
- 3.Ordered the 1st Respondent to pay the Claimant nominal damages of Kshs 1/-, personally
- 4.1st Respondent to bear the Claimant's costs
- Jurisdiction invoked
- Article 162(2) of the Constitution (employment and labour relations jurisdiction); reference to Article 41 fair labour practices and County Governments Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "John Mwaniki v Joshua Irungu & another [2017] KEELRC 1891 (KLR)", Case Analysis (2017). Cause No 268 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2017/1891/eng@2017-01-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.