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ELRCDismissedCause No. 92 of 2016· [2018] KEELRC 1653 (KLR)

Elpa John Esekon v County Government of Turkana & another [2018] KEELRC 1653 (KLR)

Employment and Labour Relations Court of Kenya
26 June 2018
DMD. K. N. Marete
3,362 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~13 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled a man was never validly appointed Managing Director of LOWASCO, so he could not claim he was wrongfully fired.

What this practically means

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Executive summary

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The claimant, Elpa John Esekon, sued the County Government of Turkana and its Chief Officer, Ekutan Wonyang Paul, alleging he was employed as Managing Director and CEO of LOWASCO (Lodwar Water and Sanitation Company) under a contract signed on 8th April 2014, renewed on 29th December 2015 by the LOWASCO board, and that on 31st March/1st April 2016 the 2nd respondent wrongfully announced he was no longer Managing Director, locked his office, and interfered with LOWASCO's management. He sought declarations that his contract remained valid, an order to reopen his office, an injunction against interference, damages and costs. The respondents denied he was ever substantively appointed, contending he was only an acting Managing Director appointed in December 2013 subject to confirmation that never occurred, and that the purported appointments and renewal were nullities because no validly constituted Board of Directors existed after 2013 and the requisite notice and membership requirements of the Articles of Association were not met. The court framed four issues, principally whether there was any termination. Holding that no valid board existed to appoint or renew the claimant, the court found he was never substantively appointed Managing Director and that there was therefore no termination of employment; the remaining issues fell away. The claim was dismissed with each party bearing their own costs. The 2nd respondent did not appear; the claimant was represented by Mr. Koko and the 1st respondent by Mr. Munywa.

Key legal issues

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01

Whether the claimant was terminated from employment as Managing Director of LOWASCO

Holding

No termination existed because the claimant was never validly appointed Managing Director; he merely acted in the position and the purported substantive appointment was a nullity.

Reasoning

The court scrutinised both cases and found the respondents' case that no valid Board of Directors existed since 2013 persuasive. The board that purportedly appointed or renewed the claimant's contract, with Professor Akuja as chair, was not legitimately constituted, so the appointment and the claimed 2015 renewal were unlawful. Without a valid contract of employment, there could be no termination.

p. 4
02

Whether the claimant is entitled to the relief sought

Holding

Not entitled; the subsidiary issues fell away once no termination was found.

Reasoning

The claimant sought declarations, reinstatement-type relief, an injunction and damages. Since the foundational issue of termination failed, the court held the remaining issues were non-issues not worth consideration, and dismissed the claim with no order as to costs.

p. 5

Legal principles established

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  • An appointment made by a body that is not a validly constituted board of directors is a nullity and cannot found an employment claim.
  • Decisions made by an illegally constituted board are illusory and have no effect in law (adopted principle).

Court orders

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  1. 1.The claim is dismissed
  2. 2.Each party bears their own costs of the claim

Authorities

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Legislation

  • Water ActNo. 8 of 2002
  • Companies ActCap 486
  • State Corporations ActSection 5(1)

Cases cited (3)

  • George S Onyango v Board of Directors of Numerical Machining Complex Limited, Minister for Industrialization & Attorney-General
    [2012] eKLR
  • Julius Nyarotho v The Attorney-General & 3 Others
    [2013] eKLR
  • Kyangavo v Kenya Commercial Bank Ltd & another
    [2004] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (Employment and Labour Relations Court Act; claim filed as a Memorandum of Claim)

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, "Elpa John Esekon v County Government of Turkana & another [2018] KEELRC 1653 (KLR)", Case Analysis (2018). Cause No. 92 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1653/eng@2018-06-26

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