Salome Munubi & 5 others v Muhammad Swazuri & 2 others; Emmanuel Busera (Interested Party) [2019] KEELRC 1448 (KLR)
The bottom line
#A Kenyan court ruled the NLC Chairman had no power to make directors permanent, but still ordered their contracts renewed because the employees were blameless.
What this practically means
#Executive summary
#Key legal issues
#Whether the Chairman of the National Land Commission had capacity to convert the directors' contracts to permanent and pensionable terms
The Chairman acted ultra vires and in defiance of the Commission's resolution of 8th May 2018, which had only renewed directors' contracts for five years; only the Commission, voting by majority, could convert the terms
The court examined the minutes of the special meetings of 8th May 2018 and 13th December 2018. Minute 2/MAY/2018 resolved only that directors' contracts be renewed for five years while staff from Deputy Director and below be converted to permanent and pensionable. The Chairman's memo of 9th May 2018 converting all directors' terms was therefore in excess of his powers and not a decision of the Commission.
Whether the Memo dated 4th December 2018 reverting the terms was lawful
The Memo was lawful as it restored the terms to what the Commission had actually resolved and reversed an ultra vires conversion
Since the conversion to permanent and pensionable terms was not a valid decision of the Commission, the withdrawal communicated on 4th December 2018, following the Commission's special meeting of 13th December 2018 declaring the conversion null and void, was lawful. The Petitioners cannot found a claim on an illegality.
Whether the Petitioners, though unable to rely on the ultra vires conversion, should nevertheless be relieved
Although the Petition is dismissed, the court ordered renewal of the petitioners' contracts in accordance with the Commission's resolution of 8th May 2018 because they acted to their detriment in good faith and were not to blame
The petitioners did not return to their parent government employments in the belief that they held permanent and pensionable posts at NLC. They are not blameworthy for the infighting among commissioners and should not become victims of it. The court exercised discretion to order renewal of their contracts per the Commission's own resolutions.
Legal principles established
#- No legitimate expectation can arise out of an illegitimate contract or promise; legitimate expectation cannot prevail against express provisions of the Constitution or conduct that offends the law
- Questions before the National Land Commission are decided by a majority of members as provided in Paragraph 4 of the Fourth Schedule to the National Land Commission Act
Court orders
#- 1.The contracts of all the petitioners be renewed according to the resolution of the Commission at its meeting of 8th May 2018 and the subsequent special meeting held on 13th December 2018
- 2.The orders do not interfere with the administrative actions taken by the National Land Commission in respect of the 1st and 3rd petitioners pursuant to Anti-Corruption Criminal Case No. 33 of 2018
- 3.The application dated 22nd February 2019 by the 2nd and 3rd respondents is adequately addressed by the decision
- 4.Each party to bear their own costs
- Jurisdiction invoked
- Article 50(1) of the Constitution; Sections 12(3), 16 and 20 of the Employment and Labour Relations Court Act; ELRC (Procedure) Rules, 2016
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Salome Munubi & 5 others v Muhammad Swazuri & 2 others; Emmanuel Busera (Interested Party) [2019] KEELRC 1448 (KLR)", Case Analysis (2019). Petition No. 8 of 2019 (consolidated with ELRC Cause No. 1643 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1448/eng@2019-05-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.