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ELRCDismissedPetition No. 3 of 2018· [2018] KEELRC 922 (KLR)

Hellen Chepkirui Rono v County Government of Kericho & 2 others [2018] KEELRC 922 (KLR)

Employment and Labour Relations Court of Kenya
9 October 2018
DMD. K. Njagi Marete
3,325 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court confirmed that serving in an acting county executive role gives no legal right to the permanent job, so ending that acting stint isn't dismissal.

What this practically means

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Executive summary

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The claimant petitioned the Employment and Labour Relations Court at Kericho alleging that a letter dated 4th May 2018 from the Governor of Kericho County, directing her to hand over the docket of CEC for Information, Communication, E-Government, Sports and Youth Affairs, amounted to an unconstitutional and unlawful removal and dismissal. She sought declarations of unconstitutionality, certiorari to quash the decision, a declaration of continued tenure, compensation for rights violations under Articles 10, 41, 47 and 236 of the Constitution and sections 31, 40 and 42 of the County Governments Act, 2012, and costs. The respondents denied the petition, contending it was fatally defective, that the claimant was never substantively appointed to the contested portfolio after the 2017 general election - she did not apply for it and was not approved by the County Assembly - and that she served only in an acting capacity under section 42(1) of the Act. They also raised integrity and conflict-of-interest concerns from her tenure as CEC Health Services. The court framed four issues. It found no removal or dismissal arose: the claimant had only an elongated acting stint and was never an appointee to the position, and the section 42(2) 21-day timeline did not automatically confer substantive appointment. The letter of 4th May 2018 was held to be proper executive action under section 31(a), and malice was not established. The Court of Appeal authorities relied on by the claimant were held not to apply on these facts. The petition was dismissed with each party bearing their own costs.

Key legal issues

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01

Whether the petitioner was removed or dismissed from the office of CEC Information, Communication, E-Government, Sports and Youth Affairs by the letter of 4th May 2018

Holding

No removal or dismissal arose because the petitioner was never substantively appointed to that portfolio; she served only in an acting capacity under section 42(1) of the County Governments Act.

Reasoning

The petitioner annexed no instrument of appointment to the contested portfolio. The respondent averred she was appointed only in an acting capacity. Her reliance on section 42(2) of the County Governments Act failed because the 21-day timeline did not automatically convert her acting service into a substantive appointment to which sections 31 and 40 on removal would apply.

p. 5
02

Whether the letter of 4th May 2018 was unconstitutional and unlawful

Holding

The letter was a proper executive action lawfully exercising the Governor's power under section 31(a) of the County Governments Act and did not constitute removal or dismissal.

Reasoning

The court found the letter was geared at appropriate management of the Governor's functions and could not be faulted. Malice, if alleged, had to be established by the party contesting the action, and the petitioner failed to establish malice or mala fides.

p. 5
03

Whether the petitioner is entitled to the relief sought

Holding

She is not; having failed on the claim of unconstitutional and unlawful removal or dismissal, she is disentitled to the declarations, certiorari and compensation sought.

Reasoning

The relief was premised on proof of unconstitutional removal. Since the court found no removal or dismissal occurred, the declaration of unconstitutionality, certiorari, declaration of continued tenure and compensation for rights violation all fell away.

p. 5

Legal principles established

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  • Section 42(1) of the County Governments Act keeps an outgoing CEC in office only in an acting capacity pending constitution of a new executive; the lapse of the 21-day timeline in section 42(2) does not automatically confer substantive appointment.
  • A party alleging malice in the exercise of a Governor's discretion under section 31(a) of the County Governments Act must establish malice.

Court orders

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  1. 1.Petition dismissed
  2. 2.Each party to bear their own costs of the petition

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 2(1), 3, 10, 41(1), 41(2)(b), 47, 50, 200(c), 232, 236; Chapter 6
  • County Governments Act, 2012Sections 31, 31(a), 40(1), 40(2), 42(1), 42(2)
  • Employment ActSection 41
  • Leadership and Integrity ActSections 16(1) and (2)
  • Public Officer Ethics Regulations, 2003Regulation 11, subsection 12(5)
  • Interpretations and General Provisions ActSection 52(b)

Cases cited (2)

  • County Government of Nyeri & Another v Cecilia Wangechi Ndungu
    [2015] eKLR
  • Richard Bwogo Birir vs Narok County Government & 2 Others
    (2014) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over alleged unconstitutional removal of a County Executive Committee Member; Articles 41, 47 and 236 of the Constitution and sections 31, 40 and 42 of the County Governments Act, 2012 invoked

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Hellen Chepkirui Rono v County Government of Kericho & 2 others [2018] KEELRC 922 (KLR)", Case Analysis (2018). Petition No. 3 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/922/eng@2018-10-09

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