Raphael Munyua Ndung’u v County Government of Lamu [2018] KEELRC 1178 (KLR)
The bottom line
#Kenya's Employment Court ruled that a Governor cannot fire a county executive member without giving reasons at the time, ordering reinstatement with full back pay.
What this practically means
#Executive summary
#Key legal issues
#Whether the Governor's dismissal of a CEC member under Section 31(a) of the County Governments Act requires disclosure of reasons at the time of dismissal
Yes; dismissal without disclosed reasons at the time is unlawful, null and void, and reasons cannot be introduced for the first time in pleadings
The court relied on Court of Appeal authority (Cecilia Wangechi Ndungu; Narok County Government v Richard Birir) holding that the pleasure doctrine is inapplicable and that the Governor's power under Section 31(a) must be exercised reasonably and for valid and compelling reasons. The dismissal letter disclosed no reason; the accusations of incompetence, abuse of office and gross misconduct surfaced only in the replying affidavit. Disclosure of reasons benefits the affected member, not the reviewing court, so post-hoc reasons cannot cure the irregularity.
Whether the Governor's discretion under Section 31(a) is absolute
No; it must be exercised reasonably, not whimsically, and for the public benefit
The court applied Section 31(a) of the County Governments Act and the Court of Appeal's holding in Cecilia Wangechi Ndungu that appropriateness or necessity imports reasons, and Stephen Oroto v Jacktone N Ranguma where Onyango J held the discretion is not absolute and the Governor must act with candour and not for selfish reasons.
What remedy is appropriate for the unlawful dismissal
Reinstatement without loss of salaries and benefits, given the blatant violation and the difficulty of finding similar employment
Taking into account the blatant violation of the law and the near impossibility of the Petitioner finding a similar job within the Republic, the court found reinstatement to be the only viable remedy and directed reinstatement without loss of salaries or benefits.
Legal principles established
#- The pleasure doctrine is not applicable in Kenya under the current Constitution
- A Governor's power under Section 31(a) of the County Governments Act to dismiss a CEC member, though not subject to the Section 40 procedure, must be exercised reasonably and for valid and compelling reasons, not capriciously
- If no reason for dismissal is disclosed at the time of dismissal, the decision cannot be said to be reasonable, appropriate or necessary
Court orders
#- 1.The Respondents are directed to reinstate the Petitioner to the position held by him prior to the impugned termination
- 2.Reinstatement is without loss of any salaries and/or benefits
- 3.The Respondents shall meet the costs of the Petition
- Jurisdiction invoked
- Article 258 of the Constitution (enforcement of Bill of Rights); Articles 27, 28, 41, 47, 50, 200 and 236 read with Section 40 of the County Governments Act, 2012
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Raphael Munyua Ndung’u v County Government of Lamu [2018] KEELRC 1178 (KLR)", Case Analysis (2018). Petition dated 16th April 2018 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1178/eng@2018-09-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.