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ELRCDismissedNot stated in the judgment· [2019] KEELRC 205 (KLR)

Nelly Njeri Muchiri & another v County Secretary, Embu & another [2019] KEELRC 205 (KLR)

Employment and Labour Relations Court
3 December 2019
NMNzioki wa Makau
2,991 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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The Employment Court ruled that staff hired to serve the Deputy Governor's term lose their jobs automatically when that term ends, and must sue the County Public Service Board, not individual officers.

What this practically means

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Executive summary

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Two claimants, a personal assistant and a personal secretary to the Deputy Governor of Embu County, sued the County Secretary and the Chair of the County Public Service Board, alleging that the termination of their employment in early 2018 was unilateral, malicious and unlawful, and that they were entitled to permanent and pensionable terms after probation. They sought declarations, reinstatement or payment up to retirement, unpaid salaries for January and February 2018, an injunction against interference with their terms of employment, general damages and costs. The Respondents maintained that the appointments were contractual and expressly pegged on the Deputy Governor's term of office, which expired on 21st August 2017, so the employment terminated automatically by effluxion of time; they further argued they were wrongly sued, the proper party being the County Public Service Board as a body corporate. The Claimants relied on Section 26(2) of the Employment Act and on a clause in the appointment letters suggesting conversion to permanent and pensionable terms after probation, while the Respondents argued that clause was conditional and never activated. The court held that the letters of appointment clearly pegged the terms to the Deputy Governor's term, that the Claimants misapprehended their terms, and that the terms never converted by passage of time or the end of probation. It also held that the Board, being capable of suing and being sued in its own name, should have been sued rather than the individual officers, though no personal liability arose as the County defended the officers. The suit was dismissed with no order as to costs, dated and delivered at Nyeri on 3rd December 2019.

Key legal issues

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01

Nature of the Claimants' terms of employment

Holding

The Claimants were employed on contractual terms pegged on the Deputy Governor's term of office, not permanent and pensionable terms

Reasoning

The court found the letters of employment expressly stated the terms were concomitant with the Deputy Governor's term of office. The Claimants misapprehended their terms; the probationary clause did not automatically convert the contract into permanent and pensionable terms, and no confirmation letters were produced.

p. 4
02

Unlawful termination

Holding

There was no unfair termination; the employment ended by effluxion of the Deputy Governor's term

Reasoning

Since the contracts were pegged on the Deputy Governor's term, which ended on 21st August 2017, the termination was a lapse of the contractual term rather than a unilateral, malicious or unlawful dismissal. The Claimants failed to prove discrimination or detrimental alteration of terms on a balance of probability.

p. 4
03

Proper parties to the suit

Holding

The wrong parties were sued; the Board, not its officers, should have been the respondent

Reasoning

Relying on the corporate status of the County Public Service Board under Section 57 of the County Government Act (as urged by the Respondents citing Kisumu County Public Service Board v Oguya), the court held there was no basis for suing the individual office holders. However, as the County defended them, no personal liability arose.

p. 4

Legal principles established

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  • A County Public Service Board, being a body corporate, may sue and be sued in its own name and there is no basis for suing its officers individually in employment claims concerning Board appointments
  • Where appointment letters expressly peg the terms of service to the term of office of the Deputy Governor, those terms do not convert to permanent and pensionable terms by passage of time or expiry of probation

Court orders

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  1. 1.The suit is dismissed
  2. 2.No order as to costs

Authorities

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Legislation

  • Employment ActSection 26(2)
  • County Government ActSection 57

Cases cited (2)

  • Kenya University Staff Union & Another v Masinde Muliro University of Science and Technology
    [2018] eKLR
  • Kisumu County Public Service Board & another v Nashon W.O. Oguya & 5 Others
    [2018] eKLR
Jurisdiction invoked
Not expressly stated; Employment and Labour Relations Court exercising first-instance jurisdiction over employment claims

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, "Nelly Njeri Muchiri & another v County Secretary, Embu & another [2019] KEELRC 205 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/205/eng@2019-12-03

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