Francis Angueyah Ominde v Cleophas Kiprop Lagat (Governor, Nandi County) & another [2019] KEELRC 2062 (KLR)
The bottom line
#Kenya's Employment Court ruled that a county governor cannot fire a senior official without giving them prior notice of the allegations and a fair chance to respond.
What this practically means
#Executive summary
#Key legal issues
#Whether the summary dismissal of the County Secretary without prior notice or hearing violated Articles 41, 47 and 236 of the Constitution
Yes - the termination was unconstitutional and invalid under Article 2(4)
The Governor accused the petitioner of gross misconduct only in the termination letter itself; the petitioner was given no prior notice of the allegations and no opportunity to defend himself. Fair administrative action under Article 47 (read with section 4(3) of the Fair Administrative Action Act), fair labour practices under Article 41, and protection from removal without due process under Article 236 were all breached. The dismissal was therefore invalid under Article 2(4).
Whether the Employment Act governed the petitioner's dismissal
No - the appointment was governed by section 44 of the County Governments Act, not the Employment Act
The petitioner's letter of appointment made no reference to the Employment Act, and following the Court of Appeal decision in County Government of Nyeri v Cecilia Wangeci Ndungu, State Officers' terms are regulated by the Constitution or the relevant statute, principles of fair administrative action and natural justice. Submissions premised on sections 41, 44, 45 and 46 of the Employment Act therefore failed.
What remedies flow from the unconstitutional termination
Compensatory damages of Kshs.3,500,000 for loss of earnings and violation of rights; declaration of continued office refused as the contract had expired
Article 23 empowers the court to grant appropriate relief. Because the five-year fixed contract expired on 6th June 2018, declarations of continued tenure or invalidity of the acting appointment could not practically issue. The court instead awarded compensatory damages covering loss of earnings from July 2017 to June 2018 and the constitutional violation, with interest from judgment.
Legal principles established
#- A public officer cannot be dismissed without prior notice of allegations and an opportunity to be heard; dismissal without due process is unconstitutional
- The Employment Act does not apply to State Officers, whose terms are regulated by the Constitution, the relevant statute, fair administrative action and natural justice
- Where a party does not file a replying affidavit, the factual averments in the petitioner's affidavits stand uncontested
Court orders
#- 1.Declaration that the termination of the petitioner's employment by letter dated 11th July 2017 was unconstitutional and therefore invalid
- 2.Award of compensatory damages for loss of earnings from July 2017 to June 2018 and for violation of constitutional rights in the total sum of Kshs.3,500,000
- 3.The decretal sum to attract interest at court rates from the date of judgment
- Jurisdiction invoked
- Articles 165(3)(b) and 23 of the Constitution of Kenya, 2010
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.
- Timothy Nchoe Sironka v Judical Service Commission [2020] KEELRC 503 (KLR)[2020] KEELRC 503 (KLR)17 Sept 2020
Cite this brief
#Cite this brief
Caselaw, "Francis Angueyah Ominde v Cleophas Kiprop Lagat (Governor, Nandi County) & another [2019] KEELRC 2062 (KLR)", Case Analysis (2019). Petition filed 13th July 2017 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2062/eng@2019-02-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.