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ELRCPartially AllowedPetition filed 13th July 2017 (number not stated in judgment)· [2019] KEELRC 2062 (KLR)

Francis Angueyah Ominde v Cleophas Kiprop Lagat (Governor, Nandi County) & another [2019] KEELRC 2062 (KLR)

Employment and Labour Relations Court
28 February 2019
6,409 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~26 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The petitioner, County Secretary of Nandi County on a five-year fixed-term contract expiring 6th June 2018, was summarily terminated by letter dated 11th July 2017 by the Governor, who cited gross misconduct including removal of officers from the payroll, refusal to take lawful instructions, issuance of unauthorised directives, failure to implement County Executive Committee decisions, and attempting to remove Public Service Board members. He petitioned for stay of the termination, declarations of unconstitutionality, a declaration of continued tenure, invalidity of any acting appointment, and compensation. The respondents opposed, asserting loss of trust and confidence, misconduct corroborated by an audit report, and impracticability of reinstatement. The court found the respondents had filed no replying affidavit, so the petitioner's factual averments stood uncontested, including that he was never given a hearing. Holding that the Governor exercised public power delegated under Article 1, and that the petitioner was protected by Articles 41, 47 and 236, the court found the termination unconstitutional and invalid under Article 2(4). It declined to apply the Employment Act, holding it inapplicable to State Officers. Because the contract had expired, the court refused a declaration of continued tenure but awarded compensatory damages of Kshs.3,500,000 for loss of earnings and the rights violation, with interest at court rates from the date of judgment.

Key legal issues

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01

Whether the summary dismissal of the County Secretary without prior notice or hearing violated Articles 41, 47 and 236 of the Constitution

Holding

Yes - the termination was unconstitutional and invalid under Article 2(4)

Reasoning

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).

p. 8
02

Whether the Employment Act governed the petitioner's dismissal

Holding

No - the appointment was governed by section 44 of the County Governments Act, not the Employment Act

Reasoning

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.

p. 10
03

What remedies flow from the unconstitutional termination

Holding

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

Reasoning

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.

p. 11

Legal principles established

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  • 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

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  1. 1.Declaration that the termination of the petitioner's employment by letter dated 11th July 2017 was unconstitutional and therefore invalid
  2. 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. 3.The decretal sum to attract interest at court rates from the date of judgment

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 1, 2(1), 2(4), 3(1), 10, 19, 20, 23, 25, 27, 28, 29, 35, 40, 41, 47, 50, 129, 159, 162(2), 165(3)(b), 176, 180, 185, 201, 235, 236, 258, 260
  • County Governments Act, 2012Sections 44(2)(c), 44(3)(c) and (d)
  • Employment ActSections 10, 12, 13, 41, 44, 45, 46
  • Fair Administrative Action ActSection 4(3), Section 6
  • Public Officers Ethics ActNot specified

Cases cited (11)

  • Friends of Lake Turkana Trust v Attorney General & 2 Others
    [2014] eKLR
  • Nairobi Law Monthly Company Limited v Kenya Electricity Generating Company & 2 Others
    (2013) eKLR
  • Narok County Government & Another v Richard Bwogo Birir & Another
    [2015] eKLR
  • County Assembly of Kisumu & 2 Others v Kisumu County Assembly Service Board & 6 Others
    [2015] eKLR
  • Kanda v Government of Malaya
  • Ridge v Baldwin
  • National Union of Mineworkers and Another and the Commission for Conciliation Mediation and Arbitration
    Case No. TR 2512 of 2007
  • Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others
    [2013] eKLR
  • Anarita Karimi Njeru v Republic
    [1979] eKLR
  • Gladys Boss Shollei v Judicial Service Commission
    (2014) eKLR
  • The County Government of Nyeri and the Governor of Nyeri v Cecilia Wangeci Ndungu
Jurisdiction invoked
Articles 165(3)(b) and 23 of the Constitution of Kenya, 2010

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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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.