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ELRCAllowedPetition No. 111 of 2017 ( Notice of Motion dated 18th October 2017 )· [2019] KEELRC 2195 (KLR)

Erick Otieno Oricho & 6 others v County Public Service Board & 2 others [2019] KEELRC 2195 (KLR)

Employment and Labour Relations Court
14 February 2019
MOMaureen OnyangoMNMathews Nderi Nduma
3,711 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court ruled that county governors cannot terminate public officers' contracts unless the County Public Service Board formally delegated that power in writing.

What this practically means

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Executive summary

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Seven employees of the Kisumu County Public Service Board, holding positions including Protocol Officer, Director of Special Programs and Advisor Political Affairs, received notices of termination of contract dated 30th August 2017 signed by the Acting County Secretary, the 2nd respondent, citing restructuring of the County Government after the August 2017 general elections. They filed a petition with a Notice of Motion seeking stays of the notices and restraints against advertising their positions, contending that the terminations lacked the sanction of the County Public Service Board and were an unfair labour practice. The 1st and 2nd respondents contended the claimants were political appointees of the outgoing Governor serving at his pleasure, appointments regularised by the Board, terminable under the exit clause or Section 35 of the Employment Act; the 3rd respondent, the Governor, opposed his joinder. The court framed three issues: whether the claimants were political appointees; whether the termination notices were null and void; and entitlement to the orders sought. Holding that power to appoint and remove County Public Service officers vests in the County Public Service Board and neither the Governor nor the County Secretary had any delegated authority under Section 86 of the County Governments Act, the court found the notices ultra vires and null and void, confirmed the stay of their operationalisation pending determination of the petition, limited the orders to subsisting contracts, advised the parties to consider adopting the ruling as a final order, and awarded the petitioners the costs of the application.

Key legal issues

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01

Whether the claimants were political appointees serving at the pleasure of the Governor

Holding

The claimants hold offices in the County Public Service; the Governor had no power to make political appointments to those offices absent delegation under Section 86 of the County Governments Act.

Reasoning

The appointment letters were signed by the County Secretary on the County Government letterhead, some expressly with the approval of the County Public Service Board. Under the County Governments Act the Governor may appoint CEC members and accounting officers but cannot remove other public officers; that power vests in the Board under Section 76. No delegation under Section 86 to the Governor or County Secretary was shown, so the claimants were not servants of the Governor's pleasure.

p. 6
02

Whether the notices of termination issued by the 2nd respondent were lawful

Holding

The notices were ultra vires and null and void because the 2nd and 3rd respondents had no authority to issue them.

Reasoning

The County Secretary may terminate an officer's services only where the Board's power has been delegated in writing under Section 86. The letters did not refer to any authority of the Board. Reliance on Section 35 of the Employment Act failed because Section 35 provides only for notice, operates in exclusion neither of Sections 41 and 43 (hearing and valid reason), nor applies to employees whose terms are governed by other legislation.

Legal principles established

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  • Power to remove an officer of the County Public Service, other than members of the County Executive Committee, vests in the County Public Service Board, and may only be exercised by the Governor or County Secretary where delegated in writing under Section 86 of the County Governments Act.
  • Section 35 of the Employment Act provides only for notice of termination and does not operate in exclusion of Sections 41 and 43, which require a hearing and a valid reason for removal.

Court orders

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  1. 1.Confirmation of the stay of the operationalisation of the notices of termination issued to the claimants pending the hearing and determination of the petition
  2. 2.Direction that the orders apply only to the extent that the contracts of appointment of the petitioners are still valid; where the term has lapsed, the orders are valid only up to the date the contract lapsed
  3. 3.Advice to the parties to consider adopting the ruling as a final order in the petition
  4. 4.Costs of the application to the petitioners

Authorities

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Legislation

  • Employment Act, 2007Sections 27, 28, 35(1), 35(1)(c), 41, 43, 45, 47
  • Industrial Court Act, 2011Part II
  • County Governments ActSections 30(2), 30(2)(d), 42(1), 45(1), 46(1), 46(2)(b), 49, 59(1)(c), 59(1)(e), 61(1), 63(1), 63(2), 75, 76(1) and (2), 77, 86
  • Constitution of Kenya, 2010Articles 10, 41, 47, 50, 176, 179, 232, 236
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Court Act; application under Sections 27, 28, 35, 45 and 47 of the Employment Act, 2007 and Part II of the Industrial Court Act, 2011

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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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, "Erick Otieno Oricho & 6 others v County Public Service Board & 2 others [2019] KEELRC 2195 (KLR)", Case Analysis (2019). Petition No. 111 of 2017 ( Notice of Motion dated 18th October 2017 ). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2195/eng@2019-02-14

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.