Halima Gababa Abdulahi v Lee Kinyanjui & County Government of Nakuru [2019] KEELRC 1692 (KLR)
The bottom line
#Kenya's Employment Court upheld a county official's removal, ruling that a written chance to respond can satisfy the right to a fair hearing without an oral hearing.
What this practically means
#Executive summary
#Key legal issues
#Whether the petitioner's removal from office as County Executive Committee Member breached her constitutional rights to fair hearing and fair administrative action (Articles 41, 47, 50)
No breach. The petitioner was issued a show cause notice, responded in writing, was suspended for investigations, and written reasons were given for removal; the hearing requirement was satisfied without an oral hearing.
The court held that procedural fairness is contextual. The petitioner faced five allegations, replied to the show cause notice, was suspended pending investigations, and was removed with written reasons citing section 40(1)(c) of the County Governments Act. Distinguishing County Government of Nyeri v Cecilia Wangechi Ndung'u, the petitioner here was given an opportunity to show cause which she failed to do. Natural justice does not in all cases entail an oral hearing.
Whether the removal was substantively justified on the allegations of gross misconduct
Yes. The petitioner's responses were insufficient; she did not deny using abusive language and her explanation for not attending the 28th May 2018 meeting was unsatisfactory.
Use of abusive language at the workplace is prohibited under section 44(4)(a) of the Employment Act read with section 40(1) of the County Governments Act, and failure to attend work or abide lawful instructions is subject to summary dismissal or removal. The petitioner only said she had met the officers twice but did not deny the abusive language, and the meeting notice clearly showed the date, so no good cause was shown why disciplinary action should not follow.
Whether orders of certiorari and prohibition should issue against the respondents
No. Such orders ordinarily issue in judicial review proceedings which should follow Rule 7 of the ELRC (Procedure) Rules 2016, the Law Reform Act and Order 53; the petitioner was not properly moved and the orders are discretionary.
The court, relying on Gabriel Mutava, Speaker of the National Assembly v Karume and Maurice Adongo Anyango, held that where adequate alternative procedures exist they must be followed, and judicial review is concerned with the decision-making process on affidavit evidence, not employment claims which should be instituted in the normal manner before the ELRC. The orders were therefore refused.
Legal principles established
#- An oral hearing is not always required in disciplinary matters; an opportunity to be heard may be satisfied by show cause notice, written response and written reasons for the decision
- Where there is a clear procedure for redress of a grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed, and constitutional litigation should not trivialise other adequate forums
- Under section 40(1)(c) of the County Governments Act, a Governor may remove a CEC member on grounds including gross misconduct, and failure to give a satisfactory response to allegations of abusive language or failure to attend a lawful meeting justifies summary removal
Court orders
#- 1.The petition was dismissed as without merit
- 2.Costs of the petition awarded to the respondents
- Jurisdiction invoked
- Article 165(3) of the Constitution - petition for enforcement of constitutional rights (Articles 27, 41, 47, 50) with consequential judicial review orders, in the Employment and Labour Relations Court
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kalama & 2 others (Chairman, Secretary and Treasurer respectively of Bahari Community Development CBO) v Ministry of Lands and Physical Planning & 3 others; National Land Commission (Interested Party) (Environment & Land Petition 17 of 2019) [2023] KEELC 237 (KLR)[2023] KEELC 237 (KLR)24 Jan 2023applied
Cite this brief
#Cite this brief
Caselaw, "Halima Gababa Abdulahi v Lee Kinyanjui & County Government of Nakuru [2019] KEELRC 1692 (KLR)", Case Analysis (2019). Petition No. 17 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1692/eng@2019-04-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.