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ELRCPartially AllowedNot stated in the judgment as provided· [2018] KEELRC 604 (KLR)

Jones Munene Mputhia v Tharaka Nithi County Government & another [2018] KEELRC 604 (KLR)

Employment and Labour Relations Court
8 November 2018
NMNzioki wa Makau
1,717 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled that county employees cannot be dismissed at a Governor's pleasure and backdated termination letters are unlawful.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent on 27th June 2013 as an Economic Advisor on a five-year contract and later appointed acting head of HRM, was dismissed by letter dated 8th September 2017 backdated to 8th August 2017, the date of the general election in which the Governor he served lost. He sought a declaration that the dismissal was unfair, payment of 11 months' salary for the unexpired contract term, gratuity at 31% of annual basic pay for each year served, general damages, costs and interest. The Respondents defended the claim on the basis that the contract was subject to the pleasure doctrine given the personal nature of the services to the outgoing Governor, that it varied by operation of law, that the appointment was irregular for non-compliance with Sections 59(1), 65 and 66 of the County Governments Act, and that the Claimant should have first appealed to the Public Service Commission under Section 77. The court held that the pleasure doctrine has no place under the Constitution of Kenya 2010; public service is governed by the doctrine of servants of the people and due process, so termination even at pleasure could not be arbitrary. The practice of backdating termination letters was condemned as archaic. Following County Government of Nyeri v Cecilia Wangechi Ndungu and D.K. Njagi Marete v Teachers Service Commission, the court held the Claimant could not anticipate remuneration for a period not worked, refusing the 11 months' salary claim. The claim partially succeeded: the court awarded gratuity of Kshs. 204,985.95, compensation of two months' salary at Kshs. 376,498/-, and costs of the suit.

Key legal issues

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01

Applicability of the pleasure doctrine to county government employees under the 2010 Constitution

Holding

The pleasure doctrine is not tenable under the Constitution of Kenya 2010; although the Claimant's employment was expressed to be at the pleasure of the Governor, termination had to be free of arbitrariness and accord with due process under Articles 41 and 47 and the Employment Act.

Reasoning

Relying on County Government of Nyeri v Cecilia Wangechi Ndungu, the court held that the demise of the pleasure doctrine is foundational to the Republic, where sovereign power belongs to the people and is exercised in accordance with the Constitution. Articles 1(3), 1(4) and 2(1) bind all state organs at both levels of government. Even personal servants of an outgoing Governor need not be retained by the incoming one, but disconnection of their service cannot abridge Article 41 rights.

p. 2
02

Backdating of the termination letter

Holding

Issuing a dismissal letter on 8th September 2017 purporting to end the contract with effect from 8th August 2017 was an archaic practice that must stop; the letter should have taken effect on or after the date of issuance.

Reasoning

The court found the practice of backdating termination letters unacceptable, noting the letter could easily have been effective on the date of issuance or a later date. This rendered the dismissal not in keeping with the law and grounded the award of compensation for unfair termination.

p. 2
03

Remedy for the unexpired term of the contract

Holding

The Claimant was not entitled to salary for the unexpired balance of about 11 months, as an aggrieved employee must mitigate losses.

Reasoning

Applying D.K. Njagi Marete v Teachers Service Commission (citing Menginya Salim Murgani v Kenya Revenue Authority), the court held that an able-bodied, professionally well-endowed employee is likely to find occupational engagement elsewhere and has an obligation to mitigate his losses rather than anticipate remuneration for a period not worked.

p. 2
04

Entitlement to gratuity

Holding

The Claimant was entitled to gratuity at 31% of his basic salary of Kshs. 132,249/- for each year of service, assessed at Kshs. 204,985.95.

Reasoning

The Claimant had claimed gratuity at the rate of 31% of annual basic pay for each year served. Based on his exhibited payslip showing a basic salary of Kshs. 132,249/-, the court computed and awarded gratuity of Kshs. 204,985.95, finding this head of claim established.

p. 2

Legal principles established

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  • The pleasure doctrine does not survive under the Constitution of Kenya 2010; public service is governed by due process, and termination even at pleasure must not be arbitrary or capricious.
  • Backdating a letter of termination of employment is an archaic practice that must stop.
  • An aggrieved employee must mitigate losses and cannot sit back waiting to enjoy anticipatory remuneration for the unexpired term of a contract.

Court orders

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  1. 1.Payment of gratuity at 31% of basic salary for each year of service, computed as Kshs. 204,985.95
  2. 2.Payment of compensation equivalent to 2 months' salary, Kshs. 376,498/-, for unlawful termination
  3. 3.Costs of the suit to the Claimant

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 1(3) and 1(4)
  • Constitution of Kenya, 2010Article 2(1)
  • Constitution of Kenya, 2010Article 41
  • Constitution of Kenya, 2010Article 47
  • County Governments ActSection 31(a)
  • County Governments ActSections 59(1), 65, 66
  • County Governments ActSection 77
  • Employment ActNot specified
  • Labour Relations ActNot specified

Cases cited (7)

  • Kenya Breweries Limited v Kiambu General Transport Agency Limited
    [2002] 2 EA 398
  • Eunice Jepkoech Siria v County Secretary, Uasin Gishu County
    [2017] eKLR
  • James Tinai Murete & Others v County Government of Kajiado & 22 Others
    [2015] eKLR
  • Speaker of the National Assembly v James Njenga Karume
    [1992] eKLR
  • County Government of Nyeri & Another v Cecilia Wangechi Ndungu
    [2015] eKLR
  • D. K. Njagi Marete v Teachers Service Commission
    [2013] eKLR
  • Menginya Salim Murgani v Kenya Revenue Authority
Jurisdiction invoked
Original employment and labour relations jurisdiction (Employment Act; Constitution Articles 41 and 47)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (5)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Jones Munene Mputhia v Tharaka Nithi County Government & another [2018] KEELRC 604 (KLR)", Case Analysis (2018). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/604/eng@2018-11-08

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