Dorothy Mwanzia Ng’ang’a & 4 others v Machakos County Government & 4 others [2019] KEELRC 1514 (KLR)
The bottom line
#A Kenyan court ruled Machakos County unlawfully tried to push out county board members by advertising their jobs, awarding each KShs 500,000.
What this practically means
#Executive summary
#Key legal issues
#Whether advertising the posts of Chairman and Members of the CPSB amounted to unlawful removal of the Petitioners
It did; the Petitioners had not been removed as prescribed under Section 58(5) and had not served their six-year term, so the advertisement was a declaration that their offices were vacant and was unconstitutional and null and void
The Petitioners were appointed by Gazette Notice for a non-renewable six-year term under Section 58(4) of the County Governments Act. Removal is permissible only on Article 251(1) grounds and by a 75% resolution of the County Assembly. Since neither condition was met and no termination letters issued, advertising their positions constituted constructive termination without due process.
Whether the Respondents could convert full-time appointments to part-time midstream
They could not; while Section 58(4)(b) allows part-time service, members appointed full-time cannot have their terms reviewed midstream without consultation as required by Section 10(5) of the Employment Act
The Court accepted that Section 58(4)(b) contemplates part-time membership, but held this does not permit unilateral variation of subsisting contracts. Section 10(5) of the Employment Act requires consultation and written notification of any change to material terms. There was no evidence of consultation, rendering the 22nd December 2017 conversion illegal.
Whether the suspension of the 1st and 2nd Petitioners was proper
It was not; the suspensions were lifted because the Respondents failed to disclose the extent of investigations and no charges were ever preferred
The Respondents suspended the 1st and 2nd Petitioners by letter dated 20th March 2018 on allegations of gross misconduct but did not indicate the extent of investigations or findings warranting continued suspension. Despite alleged concluded investigations, no charges were preferred, so the indefinite suspension without due process could not be sustained.
Whether the Respondents' actions violated the Petitioners' constitutional rights
Yes; the Respondents infringed the Petitioners' fair labour rights under Article 41 and the right to fair hearing under Article 47 by advertising their posts and purporting to terminate services without any hearing
The Court found the manner in which the Respondents acted - advertising the Petitioners' posts and purporting to terminate their services without hearing - breached fair labour relations rights and fair administrative action. The Petitioners had sufficiently pleaded the particulars of infringement, satisfying the Anarita Karimi Njeru threshold as applied by the Court.
Legal principles established
#- A member of a County Public Service Board appointed for a non-renewable six-year term can only be removed under Section 58(5) of the County Governments Act, on grounds set out in Article 251(1) of the Constitution and by a resolution of not less than seventy-five percent of the members of the County Assembly; advertising their posts amounts to unlawful removal
- An employer cannot unilaterally vary contractual terms of service from full-time to part-time without consultation with the employee, per Section 10(5) of the Employment Act
- Suspending public officers without disclosing the extent of investigations and findings, and keeping them suspended without preferring charges, cannot stand
Court orders
#- 1.A declaration that the Respondents' advertisement of 8th May 2016 for positions of Chairman and Members of the Machakos CPSB amounted to breach of the Petitioners' employment rights and is unconstitutional, null and void
- 2.A finding that any attempt to change the Petitioners' contract terms from permanent to part-time without consultation was illegal and null and void
- 3.The lifting of the suspensions of the 1st and 2nd Petitioners, with a direction that they continue to serve as Members of the Board unless otherwise lawfully removed or unless their term expires
- 4.Damages of Kshs. 500,000/= awarded to each of the Petitioners for breach of their rights under Articles 41 and 47
- 5.Costs of the suit awarded to the Petitioners, payable by the Respondents
- Jurisdiction invoked
- Articles 10, 20, 21, 22, 23, 73, 75, 232, 235, 258 and 259 of the Constitution of Kenya, 2010; alleged contravention of Articles 27, 28, 41, 47 and 50
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Dorothy Mwanzia Ng’ang’a & 4 others v Machakos County Government & 4 others [2019] KEELRC 1514 (KLR)", Case Analysis (2019). Petition No. 79 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1514/eng@2019-05-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.