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ELRCDismissedPetition No. 1 of 2018· [2018] KEELRC 1650 (KLR)

Joyce Chepkoech Kemei v County Government of Bomet & 3 others [2018] KEELRC 1650 (KLR)

Employment and Labour Relations Court of Kenya
26 June 2018
3,579 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court dismissed a county worker's constitutional petition because it lacked evidence, precision, and re-litigated issues already decided.

What this practically means

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Executive summary

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The petitioner, formerly Deputy Director Accounting Services (Budgets) with the County Government of Bomet, petitioned the Employment and Labour Relations Court at Kericho claiming unlawful termination, non-payment of February 2018 salary and terminal dues totalling Kshs. 9,213,300, and seeking injunctions, reinstatement, declarations of violation of Articles 27, 28, 29, 41, 47, 48, 19 and 20 of the Constitution, and a raft of related reliefs, partly on behalf of other contract employees she said had been promised conversion to permanent and pensionable terms. The respondents opposed, contending that her employment was irregular and unlawful, having been procured by the county executive without the involvement of the County Public Service Board contrary to section 59 of the County Governments Act, that similar issues had been determined in Kericho ELRC 8/2016, 46/2017, 48/2017, 50/2017 and 51/2017, and that she had ceased employment in December 2017 pursuant to court orders. The court framed six issues. It found the petition to be an improperly constituted hybrid of a personal and representative suit, pleaded without the precision required by the Anarita Karimi Njeru standard and Rules 3(1) and 4(1) of the Mutunga Rules, that the petitioner was no longer an employee and her termination was lawful given the irregularity of her engagement, and that the suit was an explicit abuse of court process, a second bite of the cherry. The petition was dismissed with costs to the respondents on 26th June 2018.

Key legal issues

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01

Whether the petition was a representative suit

Holding

The petition was a mixed grill of a personal petition and an unauthorised representative suit; the petitioner did not catalogue the other employees or comply with procedure on representative suits

Reasoning

The petitioner asserted she sued in her personal capacity and on behalf of several other employees who were promised conversion to permanent and pensionable terms. The court found she did not identify those employees nor comply with the law on representative suits, and that the constitutional violations pleaded were a hollow illustration unsupported by evidence, offending Rules 3(1) and 4(1) of the Mutunga Rules.

p. 5
02

Whether the petition was pleaded with reasonable precision

Holding

It was not; the petitioner cited Articles 27, 28, 29, 41, 47, 48, 19 and 20 without evidence or detail of actual violations, failing the Anarita Karimi Njeru standard

Reasoning

Relying on Anarita Karimi Njeru v Republic and Mumo Matemu v Trusted Society of Human Rights Alliance, the court held that a litigant invoking the Constitution must set out with reasonable precision the complaint, the provisions infringed and the manner of infringement. The petitioner left a hollow illustration of violations, which also disposed of the second issue.

p. 5
03

Whether the petitioner was an employee of the County Government of Bomet and whether her termination breached constitutional rights

Holding

The petitioner was not in employment; her engagement was irregular and unlawful, borne out of the machinations of the county executive without the involvement of the County Public Service Board, rendering the termination lawful

Reasoning

The petitioner sought reinstatement, confirming she was no longer employed. She had exited the county payroll in December 2017 pursuant to court orders in Kericho ELRC Cause No. 51 of 2017 and related litigation establishing that certain cadres of Bomet County employees were irregularly employed without regard to law, process or Board involvement, so termination was lawful and not in breach of the Constitution.

p. 5
04

Whether the suit was an abuse of the process of court

Holding

Yes; the petition was unfounded on evidence, an attempt at relitigating determined issues, and a second bite of the cherry

Reasoning

The petition and its supporting evidence showed a desperate attempt at making sense out of no sense, unmoored from any evidence. The issues had been litigated in Kericho ELRC 8/2016, 46/2017, 48/2017, 50/2017 and 51/2017. Despite those determinations the petitioner clung to a defenceless suit, an explicit abuse of court process attracting dismissal with costs.

p. 6

Legal principles established

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  • A party seeking constitutional redress must set out with a reasonable degree of precision the complaint, the provisions infringed and the manner of infringement
  • Senior public employees ought to know that recruitment in a public entity falls within a peremptory legislative framework, and appointments they knew or ought to have known were unlawful are void ab initio

Court orders

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  1. 1.The petition is dismissed
  2. 2.Costs awarded to the respondents

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 27, 28, 29(c)(f), 41(1) and (2), 47, 48, 19(2), 20(a)(b)
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013Rules 3(1), 4(1), 4(2)
  • Industrial Court Procedure Rules, 2016Section 9
  • Labour Institutions ActSection 15
  • County Governments ActSection 59
  • Public Finance Management Actceilings on recurrent expenditures
  • Employment Act, 2007general

Cases cited (3)

  • Mumo Matemu v Trusted Human Rights Society Alliance & 5 Others
    (2013) eKLR
  • Anarita Karimi Njeru v Rep
    (19179) KLR 154 at page 156
  • Hudson and Another v South African Airways Soc Limited
    (J 545/13 & J 543/13)
Jurisdiction invoked
Article 41(1) and (2) of the Constitution of Kenya, 2010 (employment and labour relations jurisdiction)

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, "Joyce Chepkoech Kemei v County Government of Bomet & 3 others [2018] KEELRC 1650 (KLR)", Case Analysis (2018). Petition No. 1 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1650/eng@2018-06-26

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