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ELRCDismissedNot stated in the judgment as provided· [2019] KEELRC 116 (KLR)

Hezron Mwambia Karong’a v Tharaka Nithi County Government & another [2019] KEELRC 116 (KLR)

Employment and Labour Relations Court
18 December 2019
NMNzioki wa Makau
1,681 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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A county employee's unfair termination claim failed because Kenyan law required him to first appeal to the Public Service Commission before going to court.

What this practically means

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Executive summary

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The Claimant, formerly a cook and later a Supply Chain Assistant in the Governor's office of a county government, sued two Respondents for unfair termination. He alleged he was competitively recruited on 14th August 2013, confirmed on permanent and pensionable terms on 26th January 2017, and terminated on 8th September 2017 without a fair hearing, with a termination letter invoking the pleasure doctrine so that staff serving the Governor's office ended their services with the Governor's term. He sought reinstatement and salary arrears of Kshs. 17,870/- per month with increments. The Respondents argued the suit was an abuse of process, that the Claimant's contract ran concurrently with the Governor's term and expired when the Governor lost the 8th August 2017 election, that his employment was procured illegally since he was not appointed by the County Public Service Board, and that the claim was premature as the Public Service Commission was the proper forum under Section 77 of the County Governments Act. The court held that the Claimant, being dissatisfied with a decision involving disciplinary control by a County Public Service Board, was obliged to first appeal to the Public Service Commission and could not bypass the statute by coming directly to court. Relying on the Hulbai Gedi Abdille decision, the court found the suit unmerited, dismissed it, and ordered each party to bear their own costs. Judgment dated and delivered at Nyeri on 18th December 2019 by Nzioki wa Makau J.

Key legal issues

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01

Exhaustion of the statutory appeal mechanism under Section 77 of the County Governments Act

Holding

The suit was premature and unmerited because the Claimant bypassed the mandatory appeal to the Public Service Commission

Reasoning

Section 77 of the County Governments Act requires any person dissatisfied or affected by a decision of a County Public Service Board, or by disciplinary control against a county public officer, to appeal to the Public Service Commission within ninety days. The court held the Claimant could not bypass this provision and come directly to Court for matters reserved for the Commission, relying on the Hulbai Gedi Abdille authority against cherry-picking statutory provisions.

p. 2
02

Validity of the employment contract and the pleasure doctrine

Holding

The court did not make a definitive holding on the merits; it noted the Claimant was 'a jack of all trades' and disposed of the claim on grounds of non-exhaustion of the statutory remedy

Reasoning

The parties disputed whether the Claimant served the Governor personally under a contract coterminous with the Governor's term, or on permanent and pensionable terms. The Respondents argued the contract was null and void ab initio as it was not made by the County Public Service Board. The court resolved the matter on procedural grounds of statutory exhaustion rather than these substantive contentions.

p. 2

Legal principles established

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  • A person dissatisfied with a decision of a County Public Service Board, including disciplinary control against a county public officer, must first appeal to the Public Service Commission under Section 77 of the County Governments Act before approaching the Employment and Labour Relations Court
  • Litigants may not choose which part of a statute to follow or bypass clear legislative procedure

Court orders

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  1. 1.The suit is dismissed
  2. 2.Each party to bear their own costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 10; Article 232
  • County Governments ActSections 65, 66, 77
  • Penal CodeSection 312

Cases cited (7)

  • Lisper Kathure Mukuru v Tharaka Nithi County Government & Another
    [2018] eKLR
  • Republic v Secretary County Public Board & another Ex parte Hulbai Gedi Abdille
    [2015] eKLR
  • Nabro Properties Ltd v Sky Structures Ltd
    (2002) Vol. 2 KLR 299
  • Mapis Investment (K) Ltd v Kenya Railway Corporation
    [2006] eKLR
  • James Tinai Murete & Others v County Government of Kajiado & 22 Others
    [2015] eKLR
  • Speaker of the National Assembly v James Njenga Karume
    [1992] eKLR
  • Macfoy v United Africa Company Ltd
    (1961) 3 All ER 1179
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act and County Governments Act (Section 77); court found claim premature for want of appeal to the Public Service Commission

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, "Hezron Mwambia Karong’a v Tharaka Nithi County Government & another [2019] KEELRC 116 (KLR)", Case Analysis (2019). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/116/eng@2019-12-18

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