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ELRCAllowedPetition dated 16th April 2018· [2018] KEELRC 1162 (KLR)

Florence Wairimu Ndung’u v County Government of Lamu & another [2018] KEELRC 1162 (KLR)

Employment and Labour Relations Court
20 September 2018
LNLinnet Ndolo
3,001 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~12 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that a Governor cannot fire a county executive committee member without stating reasons in the dismissal letter itself.

What this practically means

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Executive summary

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The Petitioner, a member of the Lamu County Executive Committee in charge of Agriculture and Water Development appointed on 2nd January 2018, was dismissed by a brief unreferenced letter dated 3rd April 2018 from Governor Fahim Yasin Twaha stating merely that her services were no longer required. She petitioned the Employment and Labour Relations Court at Mombasa claiming violations of Articles 27, 28, 41, 47, 50, 200 and 236 of the Constitution and Section 40 of the County Governments Act, seeking declarations of nullity, certiorari, prohibition against appointing a fresh nominee, and reinstatement or, in the alternative, payment of dues for the unexpired term. The Respondents justified the dismissal under Section 31(a) of the County Governments Act, alleging incompetence, consultation of the former Governor, and undisclosed allegations of corruption and abuse of office. The Court framed two issues: whether the dismissal was lawful, and whether the Petitioner was entitled to the remedies sought. Applying Court of Appeal authority, the Court held that although Section 31(a) permits dismissal without the Section 40 procedure and without a disciplinary hearing, the power must be exercised reasonably, for valid and compelling reasons, not arbitrarily or capriciously. Because the dismissal letter disclosed no reasons, and the reasons later advanced in affidavits could not cure that defect, the dismissal was unlawful, null and void. Finding reinstatement the only viable remedy, the Court ordered reinstatement without loss of salaries or benefits and awarded costs to the Petitioner.

Key legal issues

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01

Whether dismissal without disclosed reasons under Section 31(a) of the County Governments Act is lawful

Holding

The dismissal was unlawful, null and void because no reason was disclosed in the dismissal letter at the time of dismissal.

Reasoning

Although Section 31(a) allows the Governor to dismiss a CEC member without the Section 40 disciplinary procedure, the power is not absolute and must be exercised reasonably for valid and compelling reasons. The Court of Appeal authority establishes that reasons determine reasonableness. The dismissal letter of 3rd April 2018 gave no reasons; the allegations (incompetence, corruption, consulting the former Governor) surfaced only in affidavits filed in response to the Petition and could not cure the irregularity.

p. 5
02

Whether the pleasure doctrine applies to county executive committee members

Holding

The pleasure doctrine is no longer applicable in Kenya under the current Constitution.

Reasoning

Counsel conceded the doctrine of servants of the crown and pleasure no longer applies, and the Court of Appeal in Narok County Government v Richard Birir confirmed this. Both the Governor and CEC members are servants of the people exercising delegated authority under Article 1 of the Constitution, and appointment of CEC members is not governed by the Employment Act, 2007.

p. 5

Legal principles established

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  • A Governor's power under Section 31(a) of the County Governments Act to dismiss a CEC member must be exercised reasonably and for valid and compelling reasons, not arbitrarily or capriciously.
  • Reasons for dismissal must be disclosed at the time of dismissal; reasons introduced later in pleadings cannot cure the failure.

Court orders

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  1. 1.Reinstatement of the Petitioner to the position held by her prior to the impugned termination
  2. 2.The reinstatement is without loss of any salaries and/or benefits
  3. 3.The Respondents to meet the costs of the Petition

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 1, 10, 27(1),(2),(3), 28, 40(1), 41(1), 47(1),(2), 50(1), 73(2)(d), 174, 200(c), 236, 258
  • County Governments Act, 2012Sections 3B, 31(1)(a), 40(1)-(4)
  • Employment Act, 2007

Cases cited (3)

  • County Government of Nyeri & another v Cecilia Wangechi Ndungu & another
    [2015] eKLR
  • Narok County Government & another v Richard Birir & another
    [2015] eKLR
  • Stephen Oroto & 4 others v Jacktone Ranguma
    [2016] eKLR
Jurisdiction invoked
Article 258 of the Constitution (enforcement of Bill of Rights)

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, "Florence Wairimu Ndung’u v County Government of Lamu & another [2018] KEELRC 1162 (KLR)", Case Analysis (2018). Petition dated 16th April 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1162/eng@2018-09-20

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