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ELRCDismissedPetition No 2 of 2016· [2018] KEELRC 2427 (KLR)

Paul Christopher Kimali Kioko v Governor of the County of Kitui & 2 others [2018] KEELRC 2427 (KLR)

Employment and Labour Relations Court of Kenya
9 February 2018
2,595 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 dismissed a county official's claim of unfair dismissal because he skipped the disciplinary hearing he was invited to attend.

What this practically means

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Executive summary

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The Petitioner, appointed as Executive Committee Member for Lands, Infrastructure and Urban Development of the County Government of Kitui by Gazette Notice No. 7864 of 6th June 2013, was interdicted on half salary on 10th December 2015 over allegations of gross misconduct, including alteration of contract documents, inflation of project costs, seeking bribes and irregular acquisition of public land. A committee formed to investigate the allegations made adverse findings, and on 19th May 2016 the Governor terminated his appointment. The Petitioner petitioned the Employment and Labour Relations Court, alleging violation of his rights under Articles 10, 47 and 236 of the Constitution, asserting that the 1st and 2nd Respondents lacked disciplinary authority over him, and sought declarations, a conservatory order, reinstatement, damages, compensation for salary deductions and costs. The Respondents maintained the Governor could lawfully dismiss him if he considered it appropriate, that the interdiction letter contained all the allegations, and that the Petitioner was invited to defend himself before the investigation committee on 11th April 2016 but failed to attend. The Court, per Linnet Ndolo J, framed two issues: whether the Petitioner's rights were violated, and whether he was entitled to the remedies sought. Relying on County Government of Nyeri v Cecilia Wangechi Ndung'u, the Court held that the Governor's power of dismissal under Section 31(a) of the County Government Act must not be exercised arbitrarily, but that an opportunity to be heard had been offered and squandered. The petition was dismissed with each party bearing their own costs.

Key legal issues

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01

Whether the Petitioner's constitutional rights under Articles 10, 47 and 236 were violated by the interdiction and termination

Holding

No violation - the Petitioner was offered an opportunity to be heard before the investigation committee and declined to attend without justification

Reasoning

The Court found the Petitioner was invited to appear before the committee appointed by the Governor to answer allegations of gross misconduct. His three excuses - pending court case, vague allegations, and indisposition - were each rejected: no court order barred the proceedings, he made no attempt to obtain particulars, and no medical certificate was produced. Having failed to appear, he could not use the Court as a substitute disciplinary panel.

p. 6
02

Whether the 1st and 2nd Respondents had disciplinary authority over the Petitioner as a County Executive Committee Member

Holding

The Governor had power under Section 31(a) of the County Government Act to dismiss a CECM if he considered it appropriate and necessary, subject to acting non-arbitrarily

Reasoning

The Petitioner was appointed pursuant to Article 179(2) of the Constitution and Section 30(2)(b) of the County Government Act, becoming a state officer. Relying on County Government of Nyeri v Cecilia Wangechi Ndung'u, the Court held the Governor's dismissal power must be exercised for reasons, not arbitrarily, but that the opportunity to respond satisfies this requirement - which the Petitioner was given and forfeited.

p. 6
03

Whether the interdiction was lawful

Holding

The interdiction was lawful, being effected in accordance with the Human Resource Policies and Procedures Manual for the Public Service and the County Public Service Human Resource Manual

Reasoning

The Court dismissed the complaint about the interdiction of 10th December 2015, noting that the interdiction letter contained all the allegations and that the interdiction followed the applicable public service human resource manuals. The Petitioner's grievance that the allegations were too general was also rejected as he made no attempt to seek particulars from the Respondents.

p. 7

Legal principles established

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  • Under Section 31(a) of the County Government Act, the Governor may dismiss a County Executive Committee Member only for reasons that make the dismissal appropriate or necessary, and may not act arbitrarily or capriciously
  • Appropriateness or necessity for dismissal can only be determined if the officer is granted an opportunity to respond to the allegations
  • An employee who squanders an opportunity to be heard cannot later complain of not being heard; an employee cannot turn the court into a disciplinary panel

Court orders

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  1. 1.The Petitioner's Petition is dismissed
  2. 2.Each party to bear their own costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 10, 10(2), 47, 47(1), 179, 179(2), 236, 260
  • County Government ActSections 30, 30(2)(b), 31, 31(a), 44, 45
  • Public Procurement and Disposal Regulations, 2006Section 58

Cases cited (3)

  • County Government of Nyeri & another v Cecilia Wangechi Ndung'u
    [2015] eKLR
  • Esha Chizi Lugogo v Pact Kenya
    [2013] eKLR
  • Perpetua Mponjiwa v Kenya Airways Ltd & Attorney General
    [2016] eKLR
Jurisdiction invoked
Original constitutional petition jurisdiction alleging violation of Articles 10, 47 and 236 of the Constitution

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, "Paul Christopher Kimali Kioko v Governor of the County of Kitui & 2 others [2018] KEELRC 2427 (KLR)", Case Analysis (2018). Petition No 2 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2427/eng@2018-02-09

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