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ELRCDismissedFurther Amended Petition dated 4th November 2016 (Kitui)· [2018] KEELRC 2487 (KLR)

Stanlus Musyoka Nyamai v Governor of the County of Kitui & 2 others [2018] KEELRC 2487 (KLR)

Employment and Labour Relations Court
9 January 2018
LNLinnet NdoloMOMaureen Onyango
2,184 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled that a County Governor—not the County Public Service Board—disciplines the County Secretary, and employees who skip hearings cannot later claim they weren't heard.

What this practically means

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Executive summary

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The Petitioner, formerly County Secretary of the County Government of Kitui, challenged his interdiction on 10th December 2015 and subsequent termination by letter dated 19th May 2016. He claimed the Governor and the CECM lacked disciplinary control over him, contending that only the County Public Service Board could discipline him under Section 59(1)(c) of the County Government Act, and alleged breach of Articles 10, 47 and 236 of the Constitution. He sought declarations of violation, a conservatory order, reinstatement, damages, compensation for interdiction salary deductions and costs. The Respondents justified the action on complaints of incompetence, corruption, abuse of office in procurement, insubordination and poor leadership, and deponed that a Gazette-notified investigation committee invited the Petitioner to defend himself but he failed to attend, whereupon termination followed. The court framed three issues: the Governor's disciplinary power, violation of rights, and entitlement to remedies. It held that the office of County Secretary under Section 44 of the County Government Act cannot be one of the offices the Board creates under Section 59, so only the Governor could discipline the Petitioner, subject to acting non-arbitrarily. On fair administrative action, the court found the Petitioner was invited to be heard and, on his advocates' advice, declined to attend; an employee who squanders the chance to be heard cannot later complain of denial of a hearing, nor turn the court into a disciplinary panel. The Petition was dismissed with each party bearing their own costs.

Key legal issues

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01

Power to discipline the County Secretary

Holding

The Governor, not the County Public Service Board, had disciplinary control over the Petitioner as County Secretary

Reasoning

Section 44 of the County Government Act establishes the office of County Secretary and provides the holder may be dismissed by the Governor. Section 59 offices are those created by the Board; the County Secretary office predates and stands outside them. The Board therefore could not be the sole disciplining authority.

p. 4
02

Violation of right to fair administrative action (Article 47)

Holding

No violation; the Petitioner was invited to respond to the allegations and chose not to appear before the investigation committee

Reasoning

The Petitioner was invited to make representations before the Governor's investigation committee but on his advocates' advice did not attend. Disciplinary proceedings are not optional; having squandered the opportunity to be heard, he cannot complain of lack of hearing or turn the Court into a disciplinary panel.

p. 5
03

Entitlement to remedies

Holding

Petition dismissed with no order as to costs

Reasoning

Having found the Governor had power to discipline and that the Petitioner was afforded and declined a hearing, none of the declarations, reinstatement, damages or compensation sought could issue.

p. 6

Legal principles established

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  • The County Secretary is answerable in discipline to the Governor under Section 44 of the County Government Act, not the County Public Service Board
  • In exercising disciplinary power, the Governor may not act arbitrarily or capriciously
  • An employee who declines an employer's opportunity to be heard cannot later complain of not being heard

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 KenyaArticles 10, 10(2), 47, 47(1), 179, 236; Chapter 6
  • County Government ActSections 30, 31, 44, 44(1), 44(2), 45, 57, 59(1), 59(1)(c)
  • Public Procurement and Disposal Actnull

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
Articles 10, 47 and 236 of the Constitution; County Government Act

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, "Stanlus Musyoka Nyamai v Governor of the County of Kitui & 2 others [2018] KEELRC 2487 (KLR)", Case Analysis (2018). Further Amended Petition dated 4th November 2016 (Kitui). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2487/eng@2018-02-09

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