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ELRCDismissedNot stated in the judgment· [2019] KEELRC 282 (KLR)

Brian Wibo Mugendi v County Government of Tharaka Nithi & another [2019] KEELRC 282 (KLR)

Employment and Labour Relations Court
19 November 2019
NMNzioki wa Makau
2,833 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court dismissed a county worker's claim because he skipped the required Public Service Commission appeal and his job appointment itself was procedurally flawed.

What this practically means

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Executive summary

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The Claimant, employed as a finance officer ICT support in Tharaka Nithi County from January 2014, sued after his name was removed from the county payroll during a biometric registration exercise in April 2018 and his salary was withheld. He alleged he had been on sick leave following hernia/asthma surgery and then annual leave during the period he was accused of absconding, and that he was never accorded a disciplinary hearing despite responding to a show cause letter. He sought declarations of unfair labour practices, payment of withheld April and May 2018 salaries, reinstatement, costs and interest. The Respondents defended the suit as an attempt to enforce an illegal contract: the appointment letter was issued by Kenneth Kanga, who lacked authority and faced criminal charges, the confirmation was effected by a chief officer contrary to Section 59 of the County Governments Act, the Claimant never accepted the offer, and he lacked the requisite qualification at appointment, making him a ghost worker. The Respondents also argued the Claimant should have appealed to the Public Service Commission under Section 77 of the County Governments Act. The court agreed, applying the rule that statutorily prescribed grievance procedures must be strictly followed and citing the Court of Appeal in Hulbhai Gedi Abdille. It further held that because the Claimant joined employment before attaining the necessary qualification and was unprocedurally employed, the ex turpi causa maxim barred recovery even had he proved his case. The claim was dismissed with each party bearing their own costs.

Key legal issues

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01

Statutory alternative dispute resolution mechanism

Holding

The Claimant ought to have appealed to the Public Service Commission under Section 77 of the County Governments Act rather than file suit

Reasoning

Relying on the Court of Appeal decision in Hulbhai Gedi Abdille and James Tinai Murete, the court held that where a statute prescribes a specialized grievance mechanism, litigants cannot choose which part of the statute to follow. The statutory appellate process before the Public Service Commission was the appropriate first-instance recourse.

p. 4
02

Illegality of the employment contract

Holding

Even if the Claimant had proved his case, he could not recover because his employment was unprocedural - he lacked the requisite qualification at appointment and his appointment was made without authority

Reasoning

The court found the Claimant joined employment before attaining the necessary qualification and was appointed by an officer without legal authority, contravening Section 59 of the County Governments Act. The ex turpi causa maxim and the rule in Macfoy v United Africa Company barred enforcement of the illegal contract.

p. 4

Legal principles established

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  • Where there is a clear procedure for redress of a grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed
  • No action arises from a dishonourable cause; a claim founded on an illegal or unprocedural employment cannot be enforced

Court orders

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  1. 1.The Claimant's claim is dismissed
  2. 2.Each party bears their own costs
Jurisdiction invoked
Not expressly stated; claim instituted under the Employment Act and Articles 41 and 47 of the Constitution of Kenya, 2010

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, "Brian Wibo Mugendi v County Government of Tharaka Nithi & another [2019] KEELRC 282 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/282/eng@2019-11-19

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