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ELRCDismissedCause No. 47 of 2018· [2018] KEELRC 932 (KLR)

Irene C. Rotich v County Government of Bomet [2018] KEELRC 932 (KLR)

Employment and Labour Relations Court of Kenya at Kericho
9 October 2018
DMD. K. Njagi Marete
1,608 words in judgment
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The bottom line

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A county job given without the County Public Service Board's approval is legally void, so the worker got nothing when it was cancelled.

What this practically means

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Executive summary

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The claimant was allegedly employed by the respondent County Government of Bomet in the water resource department in October 2013 at a gross salary of Kshs. 19,323, rising to Kshs. 28,323. She claimed she was wrongfully dismissed in November 2017 without payment of terminal dues, and prayed for reinstatement, Kshs. 481,491, interest, a certificate of service, and costs. She relied on sections 41(1) and 44(4) of the Employment Act, 2007, arguing she was not given reasons for dismissal or an opportunity to be heard, and cited Teresa Carlo Omondi v Transparency International Kenya. The respondent denied the claim, contending that the claimant's appointments were unlawful because they were not made by the County Public Service Board as required by Article 235(1) of the Constitution and Section 59 of the County Governments Act, rendering the contracts void ab initio and stripping her of statutory employment rights. The court framed three issues and, agreeing with the respondent, held that employment by any authority other than the County Public Service Board or its delegate was a nullity in law. The letter of 6th November 2017 merely communicated the nullity of the contract, so the termination was lawful. The claim was dismissed with each party bearing their own costs. The judgment was delivered by D. K. Njagi Marete, J on 9th October 2018.

Key legal issues

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01

Whether the termination of the claimant's employment was wrongful, unfair and unlawful

Holding

The termination was lawful because the claimant's appointment was not made by the County Public Service Board as required by Section 59 of the County Governments Act, rendering the contract void ab initio; the separation letter merely communicated that nullity

Reasoning

The respondent argued the claimant was never appointed by the County Public Service Board as required by Section 59 of the County Governments Act and Article 235(1) of the Constitution. The court accepted that appointments by other bodies were a nullity in law. The letter of 6th November 2017 merely communicated the nullity and voidness of the contract, so the termination effective 31st October 2017 could not be faulted.

p. 3
02

Whether the claimant is entitled to the relief sought

Holding

The claimant is not entitled to any relief having failed to prove unlawful termination

Reasoning

The court linked entitlement to relief to success on the unlawful termination claim. Since it found the termination lawful on the basis that the contract of employment was void ab initio for want of appointment by the County Public Service Board, the claimant became disentitled to reinstatement, terminal dues, interest, and a certificate of service.

p. 3

Legal principles established

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  • Employment of a county employee by any authority other than the County Public Service Board or its delegated authority is a nullity in law
  • A letter merely communicating the nullity of a void employment contract constitutes lawful termination

Court orders

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  1. 1.The claim is dismissed
  2. 2.Each party to bear their own costs of the suit

Authorities

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Legislation

  • Employment Act, 2007Sections 41(1), 44(4)
  • County Governments Act, 2012Section 59(1)
  • Constitution of Kenya, 2010Article 235(1)

Cases cited (2)

  • Teresa Carlo Omondi vs Transparency International Kenya
    Cause No. 863 of 2015
  • Kenya Airways Limited v Satwant Singh Flora
    [2013] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes; claim brought under the Employment Act, 2007

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, "Irene C. Rotich v County Government of Bomet [2018] KEELRC 932 (KLR)", Case Analysis (2018). Cause No. 47 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/932/eng@2018-10-09

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