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ELRCDismissedNot stated in the judgment as provided· [2019] KEELRC 2512 (KLR)

Jude Riziki Kariuki v Tharaka Nithi County Governmet & another [2019] KEELRC 2512 (KLR)

Employment and Labour Relations Court
24 January 2019
1,651 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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A county employee who lost her job when the Governor's term ended had her case dismissed for skipping the mandatory Public Service Commission appeal process.

What this practically means

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Executive summary

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The Claimant, appointed as a clerical officer II effective 1st June 2016 and allegedly on permanent and pensionable terms, sued after her dismissal on 8th September 2017 on the ground that all staff serving in the Governor's office would end their services with the sitting Governor's term. She sought a declaration that the termination was unfair, reinstatement, payment of withheld salaries and allowances, one month's salary in lieu of notice, leave pay, costs and interest. The Respondents denied her employment and pleaded that her appointment letter was one of a number of irregular letters fraudulently obtained, that she lacked qualifications at appointment, and that her status ended with the August 2017 general elections, invoking the rule in Mapis Investments on illegal contracts. At trial the Claimant testified she was first an intern, appointed by the County Public Service Board, confirmed after probation, and never queried over her credentials; the Respondents' witness, the Board chairman, conceded the dismissal was on account of the end of the Governor's term and that the Board's revocation had to follow procedures under Section 75 of the County Governments Act. In submissions the Claimant relied on Article 47(1) of the Constitution and Section 41(1) of the Employment Act, claiming notice pay and up to twelve months' compensation under Section 49(1)(c). The court held that the Claimant was an employee of the county public service despite the irregular appointment, and that reliance on the pleasure doctrine was untenable since courts pronounced it ceased to exist with the 2010 Constitution. However, the suit offended Section 77 of the County Governments Act: the Claimant was bound to appeal to the Public Service Commission first, a mandatory procedure admitting no discretion to move the court directly. The suit was therefore dismissed, with each party bearing their own costs.

Key legal issues

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01

Employment status of the Claimant notwithstanding alleged irregular appointment

Holding

The Claimant was an employee of the county public service because she was issued a letter of appointment by the 2nd Respondent's secretary, even if the appointment was irregular

Reasoning

The court found that the Claimant held a letter of appointment signed by the 2nd Respondent's secretary, which made her an employee of the county public service. The court expressly held that the alleged irregularity of the appointment did not negate her employment status, and that the invocation of the pleasure doctrine to terminate her was untenable given the 2010 Constitution.

p. 3
02

Prematurity of the suit for failure to exhaust the Section 77 appeal mechanism

Holding

The suit was prematurely filed because the Claimant was bound to first appeal to the Public Service Commission under Section 77 of the County Governments Act

Reasoning

The court held that Section 77 of the County Governments Act imposes a mandatory appeal procedure to the Public Service Commission for aggrieved county public service officers. The procedure leaves no discretion to the aggrieved party to go straight to court. Failure to exhaust it rendered the suit premature and the only fit outcome was dismissal with each party bearing its own costs.

p. 3
03

Applicability of the pleasure doctrine to county public service employees

Holding

The pleasure doctrine no longer applies following the promulgation of the Constitution of 2010

Reasoning

The Respondents terminated the Claimant on the basis of a regulation that staff serving in the Governor's office would end their services with the Governor's term. The court characterized the reliance on the pleasure doctrine as untenable, since courts have pronounced that the doctrine ceased to exist on 27th August 2010 when the Constitution was promulgated. However, this finding did not save the suit, which was dismissed for prematurity.

p. 3

Legal principles established

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  • The pleasure doctrine as a basis for terminating public officers' employment ceased to exist upon the promulgation of the Constitution of Kenya on 27th August 2010
  • The appeal procedure to the Public Service Commission under Section 77 of the County Governments Act is mandatory and admits no discretion to bypass it by moving the court directly
  • A person issued with a letter of appointment by the Board's secretary is an employee of the county public service even if the appointment is stated to be irregular

Court orders

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  1. 1.The suit is dismissed
  2. 2.Each party will bear their own costs

Authorities

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Legislation

  • Constitution of KenyaArticle 47(1)
  • Employment ActSection 41(1)
  • Employment ActSection 49(1)(c)
  • County Governments ActSection 77
  • County Governments ActSection 75
  • County Governments ActSections 62, 65 and 66
  • County Government ActSection 75

Cases cited (7)

  • Mapis Investments (K) Ltd v Kenya Railways Corporation
    [2006] eKLR
  • Jones Munene Mputhia v Tharaka Nithi County Government & Another
    [2018] eKLR
  • Republic v County Public Service Board & Another ex parte Hulbai Gedi Abdille
    [2015] eKLR
  • Nabro Properties Limited v Sky Structures Limited
    [2002] Vol. 2 KLR 299
  • Macfoy v United Africa Company Limited
    (1961) 3 All ER 1179
  • Speaker of the National Assembly v James Njenga Karume
    [1992] eKLR
  • James Tinai Murete & Others v County Government of Kajiado & 22 Others
    [2015] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act and County Governments Act; suit dismissed for non-compliance with the mandatory appeal procedure under Section 77 of the County Governments Act

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, "Jude Riziki Kariuki v Tharaka Nithi County Governmet & another [2019] KEELRC 2512 (KLR)", Case Analysis (2019). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2512/eng@2019-01-24

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