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ELRCAllowedNot stated in judgment· [2019] KEELRC 2436 (KLR)

Haron Muma Nyamache v Kisii County Government & another [2019] KEELRC 2436 (KLR)

Employment and Labour Relations Court
24 January 2019
MNMathews N. Nduma
1,936 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that only the County Public Service Board can discipline or remove county employees—not the County Secretary—and reinstated a wrongly dismissed worker.

What this practically means

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Executive summary

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The Respondents raised a preliminary objection that the Petition was prematurely filed because the Petitioner did not first appeal to the Public Service Commission under section 77 of the County Government Act, relying on the court's own decision in Shem Onywera v Kisii County Government & Another. The Petitioner opposed on two grounds: the point was res judicata, having been dismissed by Marete J. in a ruling of 11th December 2017 (with a notice of appeal filed by the Respondents pending at the Court of Appeal), and section 77(2)(c) and (e) applies only to appeals against decisions of the County Public Service Board, whereas the Petitioner challenged a decision of an individual acting as County Secretary & Head of Public Service. The court upheld both objections to the objection and dismissed the preliminary objection. On the merits, the court found that the Petitioner, employed by the County Public Service Board in January 2014 and later deployed in an acting capacity, had forfeited his position at the TSC upon County employment. The letter of 15th September 2017 purporting to release him to TSC was in substance a termination that his services were no longer needed, made without invoking section 59(1)(c) of the County Government Act and without the involvement of the County Public Service Board. The Acting County Secretary acted in excess of authority and in violation of the rules of natural justice. The court quashed the decision by certiorari, reinstated the Petitioner to his substantive and acting positions, directed implementation of the orders, and awarded costs against the 1st Respondent.

Key legal issues

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01

Whether section 77 of the County Government Act required the Petitioner to first appeal to the Public Service Commission

Holding

The preliminary objection fails because the impugned decision was not by the County Public Service Board as contemplated by section 77(2)(c) & (e), and the same issue was already determined by Marete J.

Reasoning

Section 77(2)(c) and (e) applies to appeals against decisions of the County Public Service Board. Here the decision was made by an individual purporting to act as County Secretary & Head of Public Service, not by the Board. Further, the identical preliminary objection was dismissed by Marete J. on 11th December 2017, rendering the point res judicata.

p. 1
02

Whether the letter of 15th September 2017 by the Acting County Secretary was a lawful release to TSC or an unlawful termination

Holding

The letter was in substance a termination made in excess of authority and without a hearing; it was null and void and was quashed by certiorari.

Reasoning

The court found as a fact that the Petitioner had forfeited his TSC position upon employment by the County, so the letter could not operate as a release but as a termination on the ground that his services were no longer needed. There was no evidence that section 59(1)(c) of the County Government Act was invoked to allow the County Public Service Board to exercise disciplinary control or remove the Petitioner. The Acting County Secretary therefore acted in excess of authority and in violation of natural justice.

p. 3

Legal principles established

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  • The County Secretary has no power to communicate or act on behalf of the County Public Service Board in disciplinary matters, including removal of employees.
  • An order of certiorari lies to quash an order made in excess of jurisdiction or in breach of natural justice.

Court orders

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  1. 1.Preliminary objection dismissed for lack of merit
  2. 2.Order of certiorari to remove into the court and quash the decision in the letter of 15th September 2017
  3. 3.Petitioner to remain in the substantive and acting positions held by him by virtue of his appointment to the County Government of Kisii
  4. 4.1st and 2nd Respondents to ensure the orders of the court are fully implemented
  5. 5.1st Respondent to pay costs of the suit

Authorities

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Legislation

  • County Government Actsection 77 (including 77(2)(c) and (e))
  • County Government Actsection 59(1)(c)
  • County Government Actsection 58(1)
  • County Government Actsection 2
  • County Government Actsection 64
  • County Government Actsection 73(2)

Cases cited (4)

  • Shem Onywera v Kisii County Government & Another
    ELRC Cause No. 37 of 2018
  • Samwel Okuro & 7 others v Dr. Olang'o Ongundi
    Kisumu ELRC Petition No. 5 of 2018
  • Republic v National Irrigation Board & 2 others Ex-parte Danson Mute Mugo
    [2016] eKLR
  • Kenya National Examination Council v Republic Exparte Geoffrey Gathenji & others
    1997 eKLR
Jurisdiction invoked
Constitutional petition under the Employment and Labour Relations Court jurisdiction (not expressly stated in the excerpt)

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, "Haron Muma Nyamache v Kisii County Government & another [2019] KEELRC 2436 (KLR)", Case Analysis (2019). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2436/eng@2019-01-24

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