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ELRCDismissedNot stated in the judgment· [2019] KEELRC 273 (KLR)

John Thomas Ngugi Mbau v County Public Service Board of Kiambu [2019] KEELRC 273 (KLR)

Employment and Labour Relations Court
26 November 2019
NMNzioki wa Makau
1,574 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan court threw out a dismissed county planner's claim because he went to court before finishing internal appeals, ruling the process against him was fair.

What this practically means

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Executive summary

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The Claimant, appointed on 26th March 2015 as Director - County Physical Planning Department for a three-year contractual term, sued the Respondent (a county government) after being suspended on 6th October 2016 when he disclosed that he was not registered with the Physical Planners Registration Board despite the job advertisement requiring registration of five years or more. He sought declarations that his suspension breached the Fair Administrative Actions Act, natural justice and his contract, together with conservatory orders or reinstatement, or in the alternative payment of salary and dues to the end of the contract. The Respondent countered that the Claimant lacked a basic qualification, that the requirement for registration was a reinforcement of Section 21 of the Physical Planners Registration Act rather than a contractual variation, that internal disciplinary processes were underway when the suit was filed, and that due process was ultimately followed: the Claimant appeared before the Human Resource Advisory Committee, the County Public Service Board, was summarily dismissed on 16th March 2017, and his appeal was considered and rejected. The Respondent did not adduce evidence. The court held that the claim was premature and an abuse of the court process, that the requirement for registration was meritorious and the Claimant had notice of it from the advertisement, and that the Claimant was heard before termination. The claim was dismissed with costs to the Respondent.

Key legal issues

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01

Prematurity and exhaustion of internal dispute mechanisms

Holding

The claim was premature because it was filed before the Human Resource Advisory Committee had heard the Claimant and before the internal appeal process was concluded

Reasoning

The Respondent demonstrated that the Claimant was invited to appear before the County Human Resource Advisory Committee, later appeared before the County Public Service Board, was given 30 days to appeal, and did appeal. The court held the suit should not have been filed while these mechanisms were pending, characterising the claim as premature and an abuse of process.

p. 3
02

Lawfulness of the suspension and termination

Holding

The suspension and subsequent termination were lawful and procedural; the Claimant was afforded a hearing

Reasoning

The court found that the Claimant was heard, his defence was considered, and termination ensued after the Board's process. The claim, which centred on the October 2016 suspension, could not stand because the Claimant was not terminated on 6th October 2016 as he asserted, and due process under Section 41 of the Employment Act was followed.

p. 3
03

Requirement of statutory professional registration

Holding

The requirement that the Director of County Physical Planning be registered with the Physical Planners Registration Board was meritorious and the Claimant had notice of it from the advertisement

Reasoning

The advert required registration with the Physical Planners Registration Board of five years or more. The Claimant admitted he was not registered, and the Board confirmed this. The court found the Respondent's memo merely reinforced existing law under Section 21 of the Physical Planners Registration Act rather than varying the contract.

p. 3

Legal principles established

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  • A court filing made before internal mechanisms (such as a Human Resource Advisory Committee hearing and statutory appeal) have been exhausted is premature and an abuse of the court process
  • An employee on notice from the job advertisement of a requirement for statutory professional registration cannot complain that insistence on that requirement varies the contract

Court orders

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  1. 1.The claim is dismissed
  2. 2.Costs of the suit awarded to the Respondent

Authorities

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Legislation

  • Fair Administrative Actions ActSections 4 and 6
  • Employment ActSection 10(5)
  • Employment ActSection 41
  • Physical Planners Registration ActSection 21
  • County Governments ActSection 77

Cases cited (3)

  • Rose Achieng Mihudhi v Jos Hansen & Soehne (E.A) Limited
    [2015] eKLR
  • Mary Chemweno Kiptui v Kenya Pipeline Company Limited
    [2014] eKLR
  • Morgan Air Cargo Limited v Evrest Enterprises Limited
    [2014] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction (statutory; no specific constitutional provision cited)

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, "John Thomas Ngugi Mbau v County Public Service Board of Kiambu [2019] KEELRC 273 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/273/eng@2019-11-26

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