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ELRCPartially AllowedNot stated in the judgment as provided· [2018] KEELRC 327 (KLR)

Fredrick Odhiambo Ndede v Makueni County Public Service Board & another [2018] KEELRC 327 (KLR)

Employment and Labour Relations Court
7 December 2018
BOByram Ongaya
2,147 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled that a Makueni Governor had no power to suspend a county secretary—only the County Public Service Board can discipline transitional staff.

What this practically means

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Executive summary

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The claimant, a public officer appointed by the Public Service Commission and deployed as interim county secretary for Makueni County with effect from 12.02.2013, was suspended by the Governor by letter dated 15.05.2013 pending investigations into the expenditure of LATF funds. The respondent filed no defence, only submissions on points of law, so the claimant's factual account stood undisputed. The claimant sought damages for unlawful suspension and breach of constitutional rights, any other relief, and costs. The Court framed three issues: the Governor's authority to suspend; the existence of an employer-employee relationship; and entitlement to remedies. On the first, the Court held that during the transitional period the claimant's disciplinary control vested in the County Public Service Board under section 58 of the County Governments Act and the County Public Service Human Resource Manual, so the Governor's suspension was without legal authority, violated Article 47(1) and amounted to an unfair labour practice under Article 41(1). On the second, the Court followed its own decision in Elizabeth Nzinza Masaku and held the claimant was deemed an employee of the county government on secondment under section 138 of the Act, with the respondents responsible for his payment until the secondment ended. On remedies, the Court declined to revisit the earlier ruling by Mbaru J of 08.10.2015, which placed the claimant in the position of full benefits as if the suspension never took effect, and found that no further damages were justified. Judgment was entered for the claimant with a declaration that he is entitled to be released back to the Public Service Commission for appropriate action under section 138(5) of the County Governments Act, and the respondents were ordered to pay the claimant's costs of the suit.

Key legal issues

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01

Whether the Governor had authority to suspend the claimant

Holding

The Governor lacked authority; disciplinary powers were vested in the County Public Service Board, and the suspension was unlawful and violated Articles 47(1) and 41(1)

Reasoning

The claimant's deployment was temporary with terms as per his public service appointment; he remained subject to section 138 of the County Governments Act and the County Public Service Human Resource Manual, under which disciplinary control vested in county public service boards or authorised officers. The statutory sections invoked in the suspension letter (sections 30 and 31 of the County Governments Act) did not apply, so the suspension lacked legal authority.

p. 2
02

Whether an employer-employee relationship existed between the claimant and the respondents

Holding

Yes; by operation of section 138 of the County Governments Act the claimant was deemed an officer of the county government on secondment

Reasoning

Following the Court's own decision in Elizabeth Nzinza Masaku, a public officer appointed by the Public Service Commission and serving a county during the transitional period is deemed an employee of the county government on secondment with prior terms preserved. The submission that there was no employer-employee relationship, or that the claimant was an employee of the Transitional Authority, was misconceived because section 138 fully applied.

p. 2
03

Whether the claimant is entitled to remedies as prayed for

Holding

Partly; a declaration that the claimant be released back to the Public Service Commission met the ends of justice, but no damages were awarded

Reasoning

The ruling of Mbaru J of 08.10.2015 already restored full benefits as if the suspension never took effect, and the Court would not revisit it. The 12-month compensation measure was drawn from section 49 of the Employment Act applicable to unfair termination, which was not the case here. Reverting to the Commission required release by the respondents, which had not occurred, justifying the declaration for release.

p. 3

Legal principles established

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  • A suspension imposed without statutory authority is unlawful and constitutes an unfair labour practice violating Article 41(1) and the fair administrative action rights under Article 47(1)
  • A public officer deployed to a county government as interim county secretary is deemed an employee of the county government on secondment under section 138(1) of the County Governments Act, and the county government becomes responsible for his payment until the secondment ends
  • During the transitional period, disciplinary control over a county public officer vested in the County Public Service Board, not the Governor

Court orders

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  1. 1.Declaration that the deployment as interim county secretary having been overtaken by events, the claimant is entitled to be released by the respondents back to the Public Service Commission, as per applicable transitional law including section 138(5) of the County Governments Act and transitional lawful policies, for appropriate action by the Commission with respect to the claimant's service as a public officer
  2. 2.The respondents to pay the claimant's costs of the suit

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 41(1), 47, 47(1), 50, 176(1), 236(b)
  • County Governments Act, 2012Sections 30, 31, 58, 138, 138(1), 138(5)
  • Employment Act, 2007Section 49
  • Transition to Devolved Government ActSection 17

Cases cited (2)

  • Elizabeth Nzinza Masaku - Versus - County Government of Nakuru and Another
    [2014] eKLR
  • Ruling by Mbaru J delivered on 08.10.2015 (same suit)
Jurisdiction invoked
Constitutional and employment jurisdiction of the Employment and Labour Relations Court over the employer-employee relationship deemed under section 138 of the County Governments Act, 2012

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, "Fredrick Odhiambo Ndede v Makueni County Public Service Board & another [2018] KEELRC 327 (KLR)", Case Analysis (2018). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/327/eng@2018-12-07

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