Shukuri Alawso Muhamed v Wajir County Secretary, Ahamed Sahal Omar & another [2018] KEELRC 1693 (KLR)
The bottom line
#A Kenyan court ruled that a county can't suspend a Public Service Board secretary on its own; only a 75% county assembly vote can remove them.
What this practically means
#Executive summary
#Key legal issues
#Whether the Secretary/CEO of the Wajir CPSB is a member of the Board entitled to protection under section 58(5) of the County Government Act
The court held that the Secretary is a distinct member of the Board, relying on the express wording of section 58(1)(c) of the CGA and the Attorney General's advisory of 12.10.2015, and distinguishing Mabel Muruli.
Section 58(1)(c) of the County Government Act expressly lists the certified public secretary as a member of the Board. The Attorney General's advisory dated 12.10.2015 confirmed that the secretary is a distinct member. The Supreme Court decision in Mabel Muruli was distinguished because it was decided under a different legal framework, whereas here the CGA expressly makes the secretary a member.
Whether the first respondent had authority to suspend the applicant and appoint an acting Secretary
The court found the suspension unlawful because the respondents produced no evidence of delegated disciplinary powers under the PSC HR Manual, and removal/suspension of Board members requires compliance with section 58(5) via a 75% county assembly vote.
Section 58(5) permits removal of Board members only on Article 251(1) grounds and by a 75% vote of the county assembly. The respondents claimed delegated authority under the PSC HR Policy and Procedures Manual 2016 but did not avail that document to court. The law is silent on suspension of Board members, so the impugned suspension breached section 58(5).
Whether the applicant satisfied the Giella v Caseman Brown threshold for an interlocutory injunction
Having established a prima facie case and irreparable harm (risk of losing his job through contemplated recruitment of a replacement), and with the balance of convenience favouring him, the applicant met the threshold and the injunction issued.
The court applied the Giella principles and Mrao definition of a prima facie case. The letter of 7.6.2018 contemplating recruitment until the position is substantively filled showed the applicant could lose his job unlawfully before trial, constituting irreparable harm. Even in doubt, the balance of convenience favoured a party not in breach of the law.
Legal principles established
#- The Secretary to a County Public Service Board is a member of the Board under section 58(1)(c) of the County Government Act and enjoys protection from removal only under section 58(5) read with Article 251(1) of the Constitution
- The Governor/first respondent lacks authority to suspend or remove the Secretary to the CPSB; removal requires a petition to the county assembly supported by a 75% vote
- The law is silent on suspension of CPSB members pending removal under section 58(5)
Court orders
#- 1.Pending the hearing and determination of the suit, the respondents, their officers and/or agents are restrained from interfering with the claimant's employment at the Wajir County Public Service Board
- 2.Costs in the cause
- 3.The County Government of Wajir and the Board to be enjoined as defendants in the suit forthwith
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Act (employment dispute within a County Public Service Board)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- John Saul Naviava v Franklin Esipila & another; County Government of Vihiga & another (Interested Parties) [2020] KEELRC 1274 (KLR)[2020] KEELRC 1274 (KLR)16 Apr 2020followed
Cite this brief
#Cite this brief
Caselaw, "Shukuri Alawso Muhamed v Wajir County Secretary, Ahamed Sahal Omar & another [2018] KEELRC 1693 (KLR)", Case Analysis (2018). Cause No 935 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1693/eng@2018-06-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.