Lisper Kathure Mukuru v Tharaka Nithi County Governmet & another [2019] KEELRC 2522 (KLR)
The bottom line
#A Kenyan court confirmed that the 'pleasure doctrine' no longer shields county governments from following fair procedures when terminating Governor's office staff.
What this practically means
#Executive summary
#Key legal issues
#Applicability of the pleasure doctrine to the Claimant's contract
The pleasure doctrine no longer applies under the 2010 Constitution; termination on that basis was erroneous
The Claimant served in the Governor's office on a contract signed by the Governor. The termination invoked a regulation tying her service to the Governor's term under the pleasure doctrine. The court held the doctrine ceased to exist on 27 August 2010 with the promulgation of the current Constitution, so termination on that ground was wrong.
Legality of the contract under the County Governments Act
The contract was not invalid for non-compliance with the County Governments Act because the Claimant was not a county public service employee in the strict sense
The Claimant was hired by the Governor, not the 2nd Respondent (the County Public Service Board), and paid by the 1st Respondent. Having not been engaged through the Board, she was not bound by the County Governments Act appointment procedures, and the illegality argument under Sections 59 and 63 failed.
Exhaustion of remedies before the Public Service Commission
The objection on jurisdiction fails because the Claimant was not employed by the Board
The Respondents argued the Claimant should first have gone to the Public Service Commission under Section 77 of the County Governments Act. The court reasoned that this presupposed employment by the 2nd Respondent, which did not occur; hence the objection fell in error.
Procedural fairness of the termination
Though termination was permissible, the manner of termination breached due process: no notice to show cause, no hearing, and a backdated termination date
The court accepted that the Respondents could terminate the contract but held the manner improper. No notice or hearing was given, and the termination letter was backdated to the Governor's exit. This warranted compensation under Section 49(1)(c) of the Employment Act rather than the 12 months sought.
Legal principles established
#- The pleasure doctrine ceased to exist upon the promulgation of the Constitution of Kenya, 2010
- Some due process must precede termination of employment even where termination itself is permissible
- A backdated termination date is improper and actionable
Court orders
#- 1.One month's salary in lieu of notice – Kshs. 73,190/-
- 2.Unpaid leave for 2 months – Kshs. 146,380/-
- 3.Compensation of 2 months' salary under Section 49(1)(c) of the Employment Act – Kshs. 146,380/-
- 4.Costs of the suit
- Jurisdiction invoked
- Employment and labour relations jurisdiction under Article 162(2) of the Constitution (court not expressly stated in judgment excerpt)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Lisper Kathure Mukuru v Tharaka Nithi County Governmet & another [2019] KEELRC 2522 (KLR)", Case Analysis (2019). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2522/eng@2019-01-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.