Euphrasio Gitonga Mberia v County Public Service Board, Tharaka Nithi & another [2019] KEELRC 1619 (KLR)
The bottom line
#A Kenyan court ruled that a county employee fired without notice or a hearing was unfairly dismissed and deserves compensation.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction premised on failure to exhaust the appeal to the Public Service Commission under Section 77 of the County Governments Act
The court had jurisdiction; Section 77 is not mandatory and does not oust the court's jurisdiction, especially where constitutional violations are asserted.
Section 77 is permissive ('may appeal'), and Article 234(2)(i) vests appeal functions in the PSC without excluding the court. The ELRC's jurisdiction is conferred by Article 162(2)(a) and Section 12 of the ELRC Act. Following Abdikadir Suleiman v County Government of Isiolo, intertwined claims of unconstitutionality are best determined by the court; the alternative remedy did not restrict the court's jurisdiction.
Whether the employment was illegally obtained
The allegation of illegality failed; the Respondents' conduct was inconsistent with it and it was not pleaded.
The Respondents relied on clause 5 of the very contract they alleged was illegal to effect the termination. The claim of illegality was not raised in the pleadings nor subject of criminal investigation. The Respondents produced the Claimant's application and academic documents and the appointment letter signed by their own chairman, without explaining how they obtained them if employment was fraudulent.
Whether the termination was wrongful, unlawful and unfair
Yes - the Claimant was wrongfully, unlawfully and unfairly terminated and entitled to compensation.
Under Section 45(2) of the Employment Act, termination is unfair where the employer fails to prove a valid and fair reason and fair procedure. Section 41 requires notice and a hearing before dismissal. The Claimant received no notice to show cause, no hearing, and the termination letters bore no reason; the Respondents' witness could only speculate that the reason was non-performance.
Legal principles established
#- Section 77 of the County Governments Act does not oust the ELRC's jurisdiction where constitutional infringements are intertwined with the employment dispute.
- An employer who alleges the employment contract is illegal cannot rely on that same contract to justify termination.
- Failure to comply with the mandatory procedural safeguards of Section 41 of the Employment Act renders a termination unfair.
Court orders
#- 1.Accrued leave of 26 days amounting to Kshs. 80,938/-
- 2.Payment of one month's salary in lieu of notice - Kshs. 93,390/-
- 3.3 month's salary as compensation for wrongful dismissal and unlawful termination amounting to Kshs. 280,170/-
- 4.Costs of the suit to the Claimant
- Jurisdiction invoked
- Article 162(2)(a) of the Constitution as read with Section 12 of the Employment and Labour Relations Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Euphrasio Gitonga Mberia v County Public Service Board, Tharaka Nithi & another [2019] KEELRC 1619 (KLR)", Case Analysis (2019). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1619/eng@2019-05-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.