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ELRCPartially AllowedPetition No. 73 of 2018· [2018] KEELRC 539 (KLR)

Yussuf Daud Adan v Governor Isiolo County & 4 others [2018] KEELRC 539 (KLR)

Employment and Labour Relations Court of Kenya
12 November 2018
NMNzioki wa Makau
1,302 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Isiolo's Governor acted unlawfully by firing a county minister without reasons or a hearing, and the court awarded him Kshs. 1 million in compensation.

What this practically means

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Executive summary

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This first-instance constitutional petition was filed on 30th July 2018 by the former County Executive Committee member for Water, Energy, Environment, Natural Resource and Climate Change of Isiolo County, seeking to stop the vetting of his brother, Abdi Haji Daud, as his replacement. His three-year contract dated 9th October 2017 was terminated on 22nd July 2018 via press conference and social media, without reasons, inquiry or a hearing. The 1st and 2nd Respondents filed no papers; the 3rd and 4th Respondents never appeared. The Petitioner relied on Articles 1, 10, 22, 27, 28 and 41 and sought prohibition, certiorari, reinstatement and compensation. The court found that the Governor's removal of the Petitioner was arbitrary, applying the Court of Appeal's holding in County Government of Nyeri & Another v Cecilia Wangechi Ndungu that the pleasure doctrine under Section 31(a) is qualified by the duty to act reasonably, not arbitrarily or capriciously. Article 47 entitled him to written reasons for the administrative action. The court declined reinstatement, certiorari and prohibition because the office was already occupied, and instead awarded compensation of Kshs. 1,000,000/- against the 1st and 2nd Respondents jointly and severally, with costs of the suit and interest at court rates from the date of judgment until payment in full. Judgment was delivered at Nyeri on 12th November 2018 by Nzioki wa Makau, J.

Key legal issues

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01

Arbitrary removal of a County Executive Committee member

Holding

The Governor's dismissal of the Petitioner without reasons and without a hearing was arbitrary and violated Articles 28, 41 and 47 of the Constitution

Reasoning

The Court of Appeal in County Government of Nyeri v Cecilia Wangechi Ndungu held that the pleasure doctrine under Section 31(a) is qualified: dismissal must be reasonable, not arbitrary or capricious. The Governor terminated the Petitioner's three-year contract without inquiry or reasons, communicating the removal via press conference and social media. The court agreed the action was arbitrary and untenable, entitling the Petitioner to compensation.

p. 2
02

Appropriate remedy for unconstitutional removal

Holding

Compensation, not reinstatement or certiorari, was the appropriate remedy since the office was occupied and the appointment lay within the Governor's latitude

Reasoning

Although the Petitioner sought reinstatement, certiorari and prohibition, the court noted the brother was already appointed to the office. Given the Governor's latitude in appointment and the conceded occupancy of the office, the court fashioned compensation of Kshs. 1,000,000/- with costs and interest as the fitting remedy for the breach of constitutional rights.

p. 2

Legal principles established

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  • The Governor's power to dismiss a CEC member under Section 31(a), though exercisable at pleasure, is qualified and must be exercised reasonably, not arbitrarily or capriciously
  • A person adversely affected by administrative action is entitled to written reasons for that action

Court orders

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  1. 1.Kshs. 1,000,000/- as compensation as against the 1st and 2nd Respondents jointly and severally
  2. 2.Costs of the suit
  3. 3.Interest at court rates on the sums above from date of judgment till payment in full

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 1
  • Constitution of Kenya, 2010Article 10
  • Constitution of Kenya, 2010Article 22
  • Constitution of Kenya, 2010Article 27
  • Constitution of Kenya, 2010Article 28
  • Constitution of Kenya, 2010Article 41
  • Constitution of Kenya, 2010Article 47
  • County Governments Act (implied)Section 31(a)

Cases cited (3)

  • County Government of Nyeri & Another v Cecilia Wangechi Ndungu
    [2018] eKLR
  • Narok County v Birir
    [2017] eKLR
  • Stephen Oroto v Jacktone Ranguma
Jurisdiction invoked
Constitution of Kenya, Articles 1, 10, 22, 27, 28, 41 and 47; original constitutional petition jurisdiction

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, "Yussuf Daud Adan v Governor Isiolo County & 4 others [2018] KEELRC 539 (KLR)", Case Analysis (2018). Petition No. 73 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/539/eng@2018-11-12

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