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ELRCPartially AllowedCause No 234 of 2018· [2019] KEELRC 533 (KLR)

Kennedy Muriuki Gichangi v County Government of Kirinyaga [2019] KEELRC 533 (KLR)

Employment and Labour Relations Court
28 October 2019
NMNzioki wa Makau
3,002 words in judgment
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The bottom line

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A Kenyan county employer unlawfully fired a worker without a hearing and was ordered to pay three months' salary as compensation.

What this practically means

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Executive summary

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The Claimant, employed as a personal assistant to the Deputy Governor on 8th September 2017, sued the Respondent for unlawful suspension and termination. He was suspended on 6th April 2018 for two weeks over undisclosed 'areas of concern', then terminated by letter dated 17th May 2018 but effective 13th March 2018 - a date preceding the suspension. He sought declarations of unlawfulness, reinstatement, unpaid salary and costs. The Respondent maintained the suspension was an interim investigative measure, that the Claimant was soliciting money from contractors, that no separate hearing was required, and that reinstatement was impracticable. The Respondent also argued the suit was premature for failure to appeal to the Public Service Commission under Section 77 of the County Governments Act as read with Article 234(2)(i) of the Constitution. The court held Section 77 was not mandatory and did not oust the ELRC's jurisdiction under Article 162(2)(a) and Section 12 of the ELRC Act, distinguishing the exhaustion authorities on account of intertwined constitutional issues. The court found the dismissal breached Section 41 of the Employment Act - no hearing was held and no investigation minutes were produced - and noted the effective termination date preceded the suspension, which was untenable. Reinstatement was refused because the position was filled and of an extremely sensitive nature requiring mutual trust. The court entered judgment for the Claimant for Kshs. 198,270/- being three months' salary as compensation under Section 49(1), with costs limited to Kshs. 45,000/-. Dated and delivered at Nyeri on 28th October 2019 by Nzioki wa Makau, J.

Key legal issues

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01

Exhaustion of alternative dispute resolution mechanisms

Holding

Section 77 of the County Governments Act is not couched in mandatory terms and does not oust the court's jurisdiction, especially where constitutional infringements are intertwined with the employment dispute

Reasoning

The court found Section 77 permissive ('may appeal') and held that jurisdiction of the court is donated by the Constitution or statute. The ELRC has exclusive original jurisdiction under Section 12 of the ELRC Act over employment disputes. Intertwined constitutional issues made the case distinguishable from the exhaustion authorities cited by the Respondent, following Abdikadir Suleiman v County Government of Isiolo.

p. 3
02

Procedural fairness in termination for misconduct

Holding

The Claimant was dismissed without a hearing as required by Section 41 of the Employment Act, rendering the dismissal unlawful and unfair

Reasoning

The Respondent did not summon the Claimant before any disciplinary committee, did not disclose the allegations, and produced no minutes of the purported investigations. The termination letter was also effective 13th March 2018, before the suspension of 6th April 2018, showing the decision predated the investigations. The dismissal violated Sections 41, 43 and 45 of the Employment Act.

p. 3
03

Remedy for unfair termination

Holding

Reinstatement refused; compensation of three months' salary awarded under Section 49(1) of the Employment Act

Reasoning

The position of personal assistant to the Deputy Governor was no longer available and was extremely sensitive, requiring mutual trust, making reinstatement impracticable. The court opted for compensation equivalent to three months' salary (Kshs. 198,270/-) plus limited costs.

p. 3

Legal principles established

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  • Before dismissal for misconduct, a hearing under Section 41 of the Employment Act is mandatory irrespective of the circumstances
  • Section 77 of the County Governments Act does not oust the ELRC's jurisdiction over employment disputes merely for want of exhaustion of the appeal to the PSC

Court orders

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  1. 1.Kshs. 198,270/- as compensation for the unlawful dismissal
  2. 2.Costs of the suit limited to Kshs. 45,000/-

Authorities

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Legislation

  • Employment ActSection 41
  • Employment ActSection 43
  • Employment ActSection 45
  • Employment ActSection 49(1)
  • County Governments ActSection 77
  • County Governments ActSection 65
  • Constitution of KenyaArticle 234(2)(i)
  • Constitution of KenyaArticle 162(2)(a)
  • Constitution of KenyaArticle 10
  • Employment and Labour Relations Court ActSection 12

Cases cited (11)

  • Nocholus Muasya Kyula v Farmchem Limited
    [2012] 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
  • Charles Gitong Kibaara v Tharaka Nithi County Government & Another
    [2019] 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
  • Jackson Cheruiyot Rono v County Secretary Bomet & Another
    [2017] eKLR
  • Abdikadir Suleiman v County Government of Isiolo & Another
    [2015] eKLR
Jurisdiction invoked
Article 162(2)(a) of the Constitution as read with Section 12 of the Employment and Labour Relations Court Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kennedy Muriuki Gichangi v County Government of Kirinyaga [2019] KEELRC 533 (KLR)", Case Analysis (2019). Cause No 234 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/533/eng@2019-10-28

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