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ELRCPartially AllowedPetition No. 79 of 2016· [2019] KEELRC 1514 (KLR)

Dorothy Mwanzia Ng’ang’a & 4 others v Machakos County Government & 4 others [2019] KEELRC 1514 (KLR)

Employment and Labour Relations Court of Kenya
27 May 2019
4,561 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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Five members of the Machakos County Public Service Board, appointed by Gazette Notice No. 11577 of 12th August 2013 for a non-renewable six-year term, petitioned the Employment and Labour Relations Court after the County Government and Governor advertised their positions in the Sunday Nation of 8th May 2016, later converted their full-time engagements to part-time with effect from 1st February 2018, and suspended the 1st and 2nd Petitioners by letter dated 20th March 2018 on allegations of gross misconduct. The Petitioners sought declarations that these actions violated Section 58 of the County Governments Act and Articles 251, 41, 47 and 50 of the Constitution, certiorari to quash the decisions, damages, and costs. The Respondents, through a Replying Affidavit of their Chief Legal Officer, maintained that the Petitioners remained in office, that no termination or removal process had been initiated, that the 1st Petitioner was only Vice-Chairperson, and that the claim was premature and speculative, relying inter alia on the Anarita Karimi Njeru specificity rule and Lenaola J's ruling in Dr. Alfred N. Mutua v EACC. Framing five issues, the Court held that advertising the Petitioners' posts amounted to declaring their offices vacant, breaching their employment rights unconstitutionally and null and void; that unilateral conversion of full-time terms to part-time without consultation contravened Section 10(5) of the Employment Act; that the indefinite suspensions, unsupported by disclosed findings or any preferred charges, could not stand and were lifted; and that Articles 41 and 47 rights were infringed. Each Petitioner was awarded Kshs. 500,000/= damages, with costs to the Petitioners. Some heads of relief, including remuneration of the 1st Petitioner as Chairperson, were not granted.

Key legal issues

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01

Whether advertising the posts of Chairman and Members of the CPSB amounted to unlawful removal of the Petitioners

Holding

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

Reasoning

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.

p. 6
02

Whether the Respondents could convert full-time appointments to part-time midstream

Holding

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

Reasoning

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.

p. 6
03

Whether the suspension of the 1st and 2nd Petitioners was proper

Holding

It was not; the suspensions were lifted because the Respondents failed to disclose the extent of investigations and no charges were ever preferred

Reasoning

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.

p. 6
04

Whether the Respondents' actions violated the Petitioners' constitutional rights

Holding

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

Reasoning

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.

p. 6

Legal principles established

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  • 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

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  1. 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. 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. 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. 4.Damages of Kshs. 500,000/= awarded to each of the Petitioners for breach of their rights under Articles 41 and 47
  5. 5.Costs of the suit awarded to the Petitioners, payable by the Respondents

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 10, 20, 21, 22, 23, 27, 28, 41, 47, 50, 73, 75, 174, 175, 232, 235, 236, 251, 258, 259, 76(2)(b)
  • County Governments Act, 2012Section 58 (including 58(4) and 58(5))
  • Employment Act, 2007Section 10(5), Section 41
  • Leadership and Integrity ActSections 12 and 23
  • Public Officer Ethics ActSection 16
  • Anti-Corruption and Economic Crimes ActSection 62

Cases cited (8)

  • Daniel Musili Nyeki v Kenya Wildlife Services
    [2015] eKLR
  • Titus Wamalwa Khaemba v Transport Workers Union & another
    [2016] eKLR
  • Cecilia Wangechi Ndungu v County Government of Nyeri & another
    [2014] eKLR
  • Rachel Carol Atamba v Masinde Muliro University of Science & Technology
    [2015] eKLR
  • Anarita Karimi Njeru v Republic
    [1979] eKLR
  • Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others
    [2012] eKLR
  • Dr. Alfred N. Mutua v Ethics & Anti-Corruption Commission & 3 Others
    [2016] eKLR
  • Republic v Public Procurement Administrative Review & 2 Others Ex-parte Pelt Security Services Limited
    [2018] eKLR
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

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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, "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.