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ELRCDismissedCause No 207 of 2018· [2019] KEELRC 497 (KLR)

Stanley Murimi Kinyua v County Government of Kirinyaga [2019] KEELRC 497 (KLR)

Employment and Labour Relations Court
4 November 2019
2,767 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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A Kenyan court dismissed a county worker's unfair dismissal claim because he skipped the required appeal to the Public Service Commission before suing.

What this practically means

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Executive summary

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The Claimant, employed as a clinical officer III on 12th February 2015 and posted to Kimbimbi Sub County Hospital, sued the Kirinyaga County Government for unlawful termination on 23rd May 2015 and non-payment of dues, including four months' salary, unpaid leave, unremitted pensions and twelve months' salary in lieu of notice. The Respondent contended that the recruitment breached Sections 65 and 66 of the County Governments Act and Article 232(1)(g) of the Constitution because the position was never advertised, and that the County Public Service Board lawfully revoked the irregular appointment under Section 75. The court found a contract of service existed in the letter of appointment, holding the Respondent was 'not candid' in alleging the appointment was illegal given the elaborate appointment and posting steps it took. Although the Board had power to revoke appointments, revocation required good cause and an inquiry under Section 75, none of which was evidenced; the termination was therefore unjustified. However, the suit failed on the issue of exhaustion: Section 77 of the County Governments Act provided an appeal to the Public Service Commission, which the Claimant declined to pursue, filing suit instead on the eve of expiry of the limitation period. All reliefs were consequently refused, the suit was dismissed, and each party was ordered to bear its own costs.

Key legal issues

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01

Existence of a contract of service

Holding

There was a contract of service encapsulated in the letter of appointment of 12th February 2015; the appointment was neither illegal, unlawful, illegitimate nor unconstitutional.

Reasoning

The letter referenced 'appointment – clinical officer III' issued by the Secretary to the County Public Service Board on permanent and pensionable terms. The Respondent took elaborate steps issuing authentic appointment and posting letters and confirming arrival of employees, undermining its claim that appointments were illegal. The letter said to countermand the appointment was addressed to chief officers, not the affected staff, and its exhibit was illegible and of no probative value.

p. 3
02

Justification of the revocation of employment

Holding

The revocation was unjustified because no evidence of the inquiry contemplated under Section 75 of the County Governments Act was displayed.

Reasoning

While the Board had power under Section 75 to recall, cancel or vacate an appointment, such revocation must be for good cause following the statutory inquiry. The Respondent's witness admitted he was not aware whether the Claimant was heard before dismissal. No evidence of an inquiry was produced, so the termination of the contract lacked justification.

p. 3
03

Exhaustion of statutory dispute resolution under Section 77 of the County Governments Act

Holding

The suit failed because the Claimant did not appeal to the Public Service Commission as provided by Section 77 before filing suit.

Reasoning

The Claimant was appointed under the County Governments Act and was bound to follow the statutory recourse. He was dismissed in 2015, did not appeal, and waited until the day before expiry of the limitation period to file suit. No explanation was given for bypassing the statutory organs, and this lapse barred recovery of relief for the unlawful termination.

p. 3

Legal principles established

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  • An appointment to county public service may be revoked or cancelled but only for good cause, following the inquiry contemplated under Section 75 of the County Governments Act
  • Where a statute prescribes a dispute resolution mechanism (here an appeal to the Public Service Commission under Section 77 of the County Governments Act), a party must exhaust it before invoking the court's jurisdiction
  • A letter of appointment issued by the County Public Service Board establishes a contract of service

Court orders

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  1. 1.Suit dismissed
  2. 2.Each party to bear their own costs

Authorities

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Legislation

  • Constitution of KenyaArticle 162(2)(a)
  • Constitution of KenyaArticle 232(1)(g)
  • Constitution of KenyaArticle 10
  • County Governments ActSections 57, 65, 66, 75, 77
  • Industrial Court ActNot specified

Cases cited (11)

  • Kenfreight (E.A.) Limited v Benson K. Nguti
    [2015] eKLR
  • Republic v Secretary, County Public Service Board & Another Ex parte Hulbal Gedi Abdile
    [2017] eKLR
  • John Mining Temoi & Another v Governor of Bungoma County & 17 Others
    [2014] eKLR
  • Stephen Munene Njagi & Another v Tharaka Nithi County Government
    [2017] eKLR
  • Samuel Angasa Onukoh v Speaker, Kisii County Assembly & 118 Others
    [2017] eKLR
  • Geoffrey Muthinja Kabiru & 2 Others v Samuel Munga Henry & 1756 Others
    [2015] eKLR
  • Speaker of the National Assembly v Njenga Karume
    [2008] 1 KLR 425
  • Jude Riziki Kariuki v Tharaka Nithi County Government & Another
    [2019] eKLR
  • Jackson Cheruiyot Rono v County Secretary Bomet & Another
    [2017] eKLR
  • David Sironga Ole Tukai v Francis Arap Muge & 2 Others
    [2014] eKLR
  • Mcfoy v United Africa Company Limited
    [1963] 3 All ER 1179
Jurisdiction invoked
Article 162(2)(a) of the Constitution and the Industrial Court Act (labour and employment relations disputes)

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, "Stanley Murimi Kinyua v County Government of Kirinyaga [2019] KEELRC 497 (KLR)", Case Analysis (2019). Cause No 207 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/497/eng@2019-11-04

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