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ELRCPartially AllowedPetition No 13 of 2017· [2019] KEELRC 2237 (KLR)

Nancy Waithera Njoroge v County Government of Murang’a & another [2019] KEELRC 2237 (KLR)

Employment and Labour Relations Court
18 February 2019
3,042 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~12 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that county governments cannot stop a public service board member's salary without a hearing, and ordered full back pay.

What this practically means

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Executive summary

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The Petitioner, a member of the Murang'a County Public Service Board appointed by the County Government of Murang'a, petitioned the Employment and Labour Relations Court at Nyeri after discovering on 6th July 2017 that her June 2017 salary had been stopped by the County Executive Committee Member in charge of Public Service. She had previously succeeded in a suit compelling the County Government to process her appointment as Board Chairperson following a discriminatory recruitment process, and she alleged the salary stoppage and withdrawal of benefits were designed to frustrate that judgment. The Respondents countered that the correct party was the Board, a body corporate, and that the Petitioner had absconded duty and failed to declare her wealth, justifying the stoppage pending disciplinary proceedings. The court distilled three issues: the correct party, the lawfulness of the stoppage, and entitlement to remedies. It held the 1st Respondent was properly sued as the appointing authority and employer. On the merits, it found the stoppage breached Article 47 and the Fair Administrative Action Act because the Petitioner was never invited to a disciplinary hearing nor given written reasons, and no proof of absenteeism or EACC referral was produced. Section 58(5) of the County Governments Act, read with Article 251(1), secures a Board member's tenure, and stoppage of salary is not a lawful disciplinary measure. Section 44(3) confers no disciplinary authority over Board members on the County Secretary, so the 2nd Respondent acted without power. The petition was allowed: a declaration of violation issued and the Respondents ordered to restore the salary and pay arrears and subsequent salaries until lawful removal.

Key legal issues

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01

Whether the County Government of Murang'a (1st Respondent) was the correct party to be sued instead of the Murang'a County Public Service Board.

Holding

Yes - as the Petitioner's appointing authority and employer, the County Government is properly sued even though the Board is a body corporate.

Reasoning

The court found it uncontroverted that the County Government stopped the Petitioner's salary on the instruction of the Board. Although the Board can sue and be sued, it is created under the County Government, and the County Government appointed the Petitioner. Following Grace Kavinya Muimi, the Governor, County Secretary and Board are sufficiently representative parties.

p. 3
02

Whether the stoppage of the Petitioner's salary violated her constitutional rights and whether the 2nd Respondent had authority to stop it.

Holding

The stoppage violated Article 47 and the Fair Administrative Action Act, and the 2nd Respondent had no authority to stop the salary of a Board member.

Reasoning

No hearing was accorded and no written reasons were given; alleged evidence of absenteeism and failure to declare wealth was never produced, rendering the Respondents' assertions mere allegations. Section 44(3) County Governments Act confers no disciplinary power over Board members on the County Secretary, and Section 58(5) secures members' tenure subject only to Article 251(1). Stoppage of salary is unknown to law as a disciplinary measure.

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03

Whether the Petitioner is entitled to the remedies sought.

Holding

Yes - the declaration sought was granted and the salary was ordered restored with all arrears and subsequent salaries until lawful removal.

Reasoning

Having found the stoppage was issued without authority and without due process, the court held it violated the statutory and constitutional provisions safeguarding the Petitioner, entitling her to the declaratory and restorative remedies sought.

p. 4

Legal principles established

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  • A hearing before adverse administrative action is an inviolable constitutional right, and administrative action taken without it is unconstitutional, null and void.
  • Stoppage of salary is not a lawful disciplinary measure against a member of a county public service board, who enjoys security of tenure under Section 58 of the County Governments Act and Article 251 of the Constitution.
  • No public or state officer is the servant of another; all are servants of the people, so a County Secretary has no disciplinary authority over members of a county public service board.

Court orders

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  1. 1.A declaration that the stoppage of the Petitioner's salary violated Articles 41, 47, 232 and 251 of the Constitution of Kenya.
  2. 2.An order directing the 1st and 2nd Respondents to restore the Petitioner's salary, pay any outstanding salaries and pay all subsequent salaries due to her as a member of the Murang'a County Public Service Board until her removal in accordance with the law.

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 10, 23, 25, 27, 41, 47(1), 47(2), 50(1), 232, 236(a), 251(1)
  • County Governments ActSections 44(3)(b), (c) and (d), 58, 58(5)
  • Fair Administrative Action Act, 2015General
  • Employment Act, 2007Section 41
  • Law Reform Act (Cap 26)General

Cases cited (4)

  • Grace Kavinya Muimi v Governor, Kitui County & 2 others
    [2018] eKLR
  • Judicial Service Commission v Mbalu Mutava & Another
    [2014] eKLR
  • Dry Associates Ltd v Capital Markets Authority and Another
    [2012] eKLR
  • Richard Bwogo Birir v Narok County Government & 2 others
    [2014] eKLR
Jurisdiction invoked
Constitution of Kenya, 2010 - Articles 23, 41, 47, 232, 236 and 251 as read with the County Governments Act (employment and constitutional petition jurisdiction of the ELRC; specific provision not stated in the judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Nancy Waithera Njoroge v County Government of Murang’a & another [2019] KEELRC 2237 (KLR)", Case Analysis (2019). Petition No 13 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2237/eng@2019-02-18

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