Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedNot stated in judgment· [2019] KEELRC 2522 (KLR)

Lisper Kathure Mukuru v Tharaka Nithi County Governmet & another [2019] KEELRC 2522 (KLR)

Employment and Labour Relations Court
23 January 2019
1,625 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

#

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

#
The Claimant, employed as Principal Information Officer in the Governor's office of Tharaka Nithi County from 7 March 2014 (per her plea; the defence said 7 March 2017), was terminated by a letter authored by the Chair of the County Public Service Board on the basis that staff in the Governor's office served at the pleasure of the Governor and their services ended with the Governor's term. She complained she received no notice or hearing, was on permanent and pensionable terms, and sought a declaration of unfair termination, reinstatement, or in the alternative 12 months' compensation, notice pay, leave pay, costs and interest. The Respondents argued the contract was null and void for non-compliance with Sections 59 and 63 of the County Governments Act, invoked the Mapis rule against enforcing illegal contracts, maintained the pleasure doctrine applied to her personal service to the Governor, and objected that she should first have gone to the Public Service Commission under Section 77. The court held that the Claimant, hired and paid outside Board processes, was not a county public service employee strictly so bound; the pleasure doctrine died with the 2010 Constitution; the exhaustion objection fell away; and although termination was permissible, its manner breached due process, particularly the backdating of the termination date. The court awarded notice pay of Kshs. 73,190/-, two months' unpaid leave pay of Kshs. 146,380/-, compensation of two months' salary under Section 49(1)(c) of the Employment Act, and costs, declining reinstatement, the declaration, and 12 months' compensation.

Key legal issues

#
01

Applicability of the pleasure doctrine to the Claimant's contract

Holding

The pleasure doctrine no longer applies under the 2010 Constitution; termination on that basis was erroneous

Reasoning

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.

p. 2
02

Legality of the contract under the County Governments Act

Holding

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

Reasoning

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.

p. 2
03

Exhaustion of remedies before the Public Service Commission

Holding

The objection on jurisdiction fails because the Claimant was not employed by the Board

Reasoning

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.

p. 2
04

Procedural fairness of the termination

Holding

Though termination was permissible, the manner of termination breached due process: no notice to show cause, no hearing, and a backdated termination date

Reasoning

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.

p. 2

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. 1.One month's salary in lieu of notice – Kshs. 73,190/-
  2. 2.Unpaid leave for 2 months – Kshs. 146,380/-
  3. 3.Compensation of 2 months' salary under Section 49(1)(c) of the Employment Act – Kshs. 146,380/-
  4. 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.