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ELRCPartially AllowedSuit No 68 of 2018· [2019] KEELRC 2531 (KLR)

Alison Mugambi Mucheke v Tharaka Nithi County Government & another [2019] KEELRC 2531 (KLR)

Employment and Labour Relations Court
31 January 2019
NMNzioki wa Makau
1,313 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court ruled a county worker's job could not end just because the Governor's term did, awarding notice pay and compensation.

What this practically means

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Executive summary

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The Claimant, employed as support staff supervisor on what he asserted were permanent and pensionable terms, sued the County Government of Nyeri and the County Public Service Board claiming that the 8th September 2017 letter terminating his employment on account of effluxion of time was illegal, unfair and unprocedural. He sought a declaration, an injunction, payment of dues for the remainder of his term and general damages. The Respondents contended that the Claimant served the Governor personally, that his contract ended automatically when the former Governor lost the 8th August 2017 elections, and that the suit should be dismissed for want of cause of action, for illegality of the appointment, and for failure to first approach the Public Service Commission under Section 77 of the County Governments Act. The court found, on the evidence of both parties' witnesses, that the Claimant was employed outside the scope of the 2nd Respondent and was therefore not bound by the County Governments Act's exhaustion requirement. It held that the contract did not expressly provide for termination upon the Governor leaving office, that the Claimant had a legitimate expectation of performance, and that he was summarily dismissed without notice. The court awarded one month's notice pay, two months' salary as compensation for abrupt and unfair dismissal, and costs of the suit. The broader reliefs sought, including an injunction and dues for the remainder of the term, were not granted.

Key legal issues

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01

Whether the Claimant was bound to exhaust the Public Service Commission remedy before filing suit

Holding

He was not, because his employment was not with the 2nd Respondent and he was not a county public service employee under the County Governments Act

Reasoning

The court found, on the evidence including the Respondents' own witness, that the Claimant was employed by the Governor's office outside the 2nd Respondent's scope, with letters issued by officials in the Governor's office. His employ was therefore not under the 2nd Respondent and he was not bound by the County Governments Act's internal remedies.

p. 2
02

Whether termination on the effluxion of the Governor's term was lawful

Holding

The termination was unfair and unprocedural; the contract did not expressly state that it would end with the Governor's term, and no notice was given

Reasoning

The court noted that the alleged provision tying termination to the Governor leaving office was not in the contract, that the Claimant had a legitimate expectation of performance of his permanent and pensionable terms, and that no notice was given as confirmed by the Respondents' own witness. Summary dismissal therefore attracted notice pay and compensation.

p. 2
03

Whether the pleasure doctrine justified the termination

Holding

The Claimant argued, and the court implicitly accepted, that the pleasure doctrine could not justify a termination without notice where the contract did not provide for it

Reasoning

The Claimant relied on Jones Munene Mputhia v Tharaka Nithi County Government where the pleasure doctrine was dismissed as archaic, and on Article 47(1) of the Constitution and Section 41(1) of the Employment Act guaranteeing fair procedure. The court found the dismissal abrupt and unfair, awarding notice and compensation.

p. 2

Legal principles established

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  • An employee whose contract does not expressly provide that it terminates when the appointing Governor leaves office has a legitimate expectation that the contract will be honoured
  • Summary dismissal without notice entitles the employee to notice pay and compensation

Court orders

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  1. 1.Payment of one month notice
  2. 2.Payment of 2 months salary as compensation for abrupt and unfair dismissal
  3. 3.Costs of the suit to the Claimant

Authorities

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Legislation

  • Constitution of KenyaArticle 47(1)
  • Employment ActSection 41(1)
  • County Governments Act 2012Sections 59(1), 65, 66, 77

Cases cited (6)

  • Jones Munene Mputhia v Tharaka Nithi County Government & Another
    [2018] eKLR
  • Republic v Secretary, County Public Board & Another ex parte Hulbal Gedi Abdille
    [2015] eKLR
  • Mapis (supra)
  • Stephen Munene Njagi & Another v Tharaka Nithi County Government
    [2017] eKLR
  • Macfoy v United Africa Company Limited
    (1961) 3 All ER 1179
  • James Tinai Murete & Others v County Government of Kajiado & 22 Others
    [2015] eKLR
Jurisdiction invoked
Employment and labour relations jurisdiction (Employment Act; Article 47(1) of the Constitution of Kenya invoked by parties)

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, "Alison Mugambi Mucheke v Tharaka Nithi County Government & another [2019] KEELRC 2531 (KLR)", Case Analysis (2019). Suit No 68 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2531/eng@2019-01-31

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