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ELRCDismissedCause No. 58 of 2018 (with Cause No. 57 of 2018 and Cause No. 56 of 2018)· [2019] KEELRC 715 (KLR)

Purity Njeru Kathenya & 2 others v Tharaka Nithi County Government & another [2019] KEELRC 715 (KLR)

Employment and Labour Relations Court
3 October 2019
NMNzioki wa Makau
1,733 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court dismissed three county workers' claims because they skipped the mandatory appeal step to the Public Service Commission before suing.

What this practically means

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Executive summary

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Three consolidated claims were filed by employees of the County Government of Tharaka Nithi alleging unfair and unlawful constructive dismissal through the withholding of salaries from around September or November 2017. The 1st Claimant, a senior clerical officer employed in August 2016, and the 2nd Claimant, a support staff member, each sought an injunction against salary withholding, reinstatement on the payroll, general damages and costs. The 3rd Claimant, a chief driver employed in August 2013 to serve the Governor, made similar prayers. The Respondents filed a joint defence asserting that the Claimants' contracts were illegal, founded on forged letters of appointment issued without the authority of the County Public Service Board in usurpation of its statutory powers under Section 59 of the County Governments Act, and relying on the Mapis Investments rule against enforcement of illegal contracts and Macfoy on nullities. A staff audit had identified the Claimants as strangers to the Respondents. The Claimants countered that no hearing was accorded them before their salaries were stopped, contrary to Article 47 of the Constitution and Section 41(2) of the Employment Act. The court, delivering a single judgment in the three files, found the suits premature: having alleged unlawful termination after the enactment of the County Governments Act, the Claimants were required to lodge appeals to the Public Service Commission under Section 77, following James Tinai Murete. That mandatory procedure left no discretion to move the court directly. All three suits were dismissed with each party bearing their own costs.

Key legal issues

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01

Exhaustion of the statutory appeal mechanism under Section 77 of the County Governments Act

Holding

The suits were filed prematurely and offended Section 77; the Claimants should have lodged appeals to the Public Service Commission before coming to court

Reasoning

The court held that the dispute arose after the enactment of the County Governments Act, and since the Claimants alleged unlawful termination of employment, the provisions of Section 77 were applicable. That provision places appeals and disputes over county appointments with the Public Service Commission, following the decision in James Tinai Murete. The mandatory procedure leaves no discretion to move the court directly, so the suits could only be dismissed.

p. 2
02

Enforceability of contracts allegedly founded on forged letters of appointment

Holding

The Respondents contended the contracts were illegal and unenforceable, invoking the rule in Mapis Investments and Macfoy on void acts; the court did not reach a substantive ruling on this as it dismissed the suits for prematurity

Reasoning

The Respondents argued the appointment letters were forged, issued without the authority of the 2nd Respondent in usurpation of its powers under Section 59 of the County Governments Act, and relied on Macfoy v United Africa Company and Mapis Investments to argue the contracts were nullities incapable of enforcement. The court disposed of the suits on the jurisdictional/exhaustion ground rather than determining the legality of the contracts.

Legal principles established

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  • Where Section 77 of the County Governments Act prescribes appeals to the Public Service Commission for county employment disputes, the procedure is mandatory and leaves the aggrieved party no discretion to bypass it and go straight to court

Court orders

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  1. 1.The three suits (Causes 56, 57 and 58 of 2018) are dismissed
  2. 2.Each party to bear their own costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 10
  • Constitution of Kenya, 2010Article 47
  • County Governments ActSection 59 (and 59(1))
  • County Governments ActSections 65 and 66
  • County Governments ActSection 77
  • Employment ActSection 41(2)

Cases cited (4)

  • Mapis Investments (K) Ltd v Kenya Railways Corporation
    [2006] eKLR; Court of Appeal at Nairobi, Civil Appeal No. 14 of 2005 (unreported)
  • Macfoy v United Africa Company Limited
    (1961) 3 All ER 1179
  • Republic v Secretary, County Public Board ex parte Hulbal Gedi Abdille
    [2015] eKLR
  • James Tinai Murete & Others v County Government of Kajiado & 22 Others
    [2015] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act and County Governments Act, 2012 (dispute over county employment); court held Section 77 of the County Governments Act mandated prior recourse to the Public Service Commission

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, "Purity Njeru Kathenya & 2 others v Tharaka Nithi County Government & another [2019] KEELRC 715 (KLR)", Case Analysis (2019). Cause No. 58 of 2018 (with Cause No. 57 of 2018 and Cause No. 56 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/715/eng@2019-10-03

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