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ELRCPartially AllowedELRC Cause No. 2470 of 2017 (Consolidated with ELRC Cause No. 2443 of 2017)· [2018] KEELRC 1215 (KLR)

Mark Ewesit Ewoi & 4 others v County Government of Turkana & 2 others [2018] KEELRC 1215 (KLR)

Employment and Labour Relations Court
31 August 2018
MOMAUREEN ONYANGO
2,721 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled that county governments cannot replace Chief Officers mid-term without hearing them first.

What this practically means

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Executive summary

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Five Chief Officers of the County Government of Turkana, appointed between December 2013 and May 2014, challenged the respondents' advertisement of their positions and the nomination of replacements following the August 2017 general elections, before the expiry of their contracts. The court consolidated ELRC Cause No. 2470 of 2017 and Cause No. 2443 of 2017 and framed four issues: jurisdiction, the term of the contracts, breach of constitutional rights, and entitlement to relief. On jurisdiction, the court dismissed the respondents' preliminary objection, holding that the claimants were appointed by the Governor under Section 45(1) of the County Governments Act and had not undergone any disciplinary process, so the appeal mechanisms in Section 77 of the County Governments Act and Sections 85-89 of the Public Service Commission Act did not apply. On the contract term, the court found that although the appointment letters omitted the term, the respondents' own IPPD records uniformly showed end dates falling on the fifth anniversary of appointment, and these records supplemented rather than altered the contracts; the contracts were therefore for five years. On rights, applying the Court of Appeal's decision in County Government of Nyeri v Cecilia Wangechi Ndungu, the court held the claimants to be State Officers to whom the Employment Act does not apply. Nevertheless, the intended removal without informing them of reasons or giving them a hearing breached Articles 41, 47 and 236 of the Constitution. The court issued an injunction restraining termination without due process, declared the advertisement of the positions null and void, but refused general and punitive damages. The County Government of Turkana was ordered to pay the claimants' costs.

Key legal issues

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01

Jurisdiction in view of Section 77 County Governments Act and Sections 85-89 Public Service Commission Act

Holding

The preliminary objection fails; the claimants were not subject to a disciplinary process nor appointed by the County Public Service Board, so no appeal avenue to the PSC applied.

Reasoning

The claimants were enforcing constitutional rights, not challenging a disciplinary decision. Their appointments were made by the Governor under Section 45(1) of the County Government Act, not by the County Public Service Board. Sections 77 of the County Governments Act and Sections 85-89 of the Public Service Commission Act govern appeals from disciplinary actions of County Public Service Boards and did not apply.

p. 3
02

Term of the claimants' contracts

Holding

The contracts were for a fixed term of five years, as reflected in the IPPD records, valid to the 5th anniversary unless lawfully terminated.

Reasoning

Though the appointment letters did not state the term, the IPPD records generated by the 1st respondent consistently showed end dates falling on the 5th anniversary of the contracts. The respondents, as authors of the contracts and custodians of the records, could not dismiss the records as untrustworthy while failing to supply contrary or correct information. The records supplemented rather than altered the contracts.

p. 4
03

Whether the respondents breached the claimants' constitutional rights by advertising their positions

Holding

Yes - the intended removal was unconstitutional under Articles 41, 47 and 236; the advertisement of the positions was null and void because the positions were not vacant.

Reasoning

The respondents never informed the claimants of the intention to terminate and replace them, and never gave them an opportunity to respond to the reasons for removal, contrary to natural justice, Article 47 and Article 236. The claimants applied for reappointment, but that did not absolve the respondents from complying with the law. The advertised positions were occupied and thus not vacant.

p. 5

Legal principles established

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  • Where a fixed-term contract omits the term, the employer's own employment records (IPPD) can be used to supplement the missing term, not to alter the contract.
  • Chief Officers are State Officers under Article 260, so the Employment Act does not apply to them; their protection lies in the Constitution, fair administrative action and natural justice.
  • Removal of a Chief Officer without being informed of the reasons and without an opportunity to respond breaches Articles 41, 47 and 236 of the Constitution.

Court orders

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  1. 1.Preliminary objection on jurisdiction dismissed
  2. 2.Declaration that the contracts of the claimants were for a fixed term of five years as reflected in their employment records kept by the respondents
  3. 3.Injunction restraining the respondents from terminating the appointment of the claimants before their term of office expires without due process
  4. 4.Declaration that the advertisement of the claimants' positions as Chief Officers is null and void as the positions were not vacant
  5. 5.County Government of Turkana to pay the claimants' costs

Authorities

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Legislation

  • Constitution of KenyaArticles 25, 41, 47, 50, 159(2), 236, 260
  • Employment ActSections 41, 43, 45
  • County Governments ActSections 45(1), 77
  • Public Service Commission ActSections 85 to 89, 86(2)
  • Employment and Labour Relations Court ActSections 3, 20(1), 29(1)
  • Civil Procedure ActSections 1A, 1B, 3A

Cases cited (3)

  • GEORGE KURIA KAMANDA -V- TEACHERS SERVICE COMMISSION & ANOTHER
    [2015] eKLR
  • JANE MOKEIRA MOGOI -V- NYAMIRA COUNTY PUBLIC SERVICE BOARD
    [2017] eKLR
  • County Government of NYERI & ANOTHER -V- CECILIA WANGECHI NDUNGU
    [2014] eKLR
Jurisdiction invoked
Article 162(2) Constitution / Employment and Labour Relations Court Act (employment and labour relations jurisdiction)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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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, "Mark Ewesit Ewoi & 4 others v County Government of Turkana & 2 others [2018] KEELRC 1215 (KLR)", Case Analysis (2018). ELRC Cause No. 2470 of 2017 (Consolidated with ELRC Cause No. 2443 of 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1215/eng@2018-08-31

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