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ELRCDismissedPetition (ELRC Nyeri), filed 12th June 2018· [2020] KEELRC 136 (KLR)

Esther Nyaguthii Wanjau v Governor, Laikipia County & another [2020] KEELRC 136 (KLR)

Employment and Labour Relations Court
11 December 2020
MOMaureen Onyango
5,624 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court dismissed a county board member's challenge because she was a serving public officer, making her appointment illegal from the start.

What this practically means

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Executive summary

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The Petitioner, appointed a member of the Laikipia County Public Service Board on 7th August 2013 for a non-renewable six-year term, petitioned the Employment and Labour Relations Court after the Governor terminated her appointment by letter dated 28th May 2018 on the ground that she had been illegally in office while a Ministry of Health public officer on unpaid leave. She sought declarations that the removal was ultra vires section 58(5) of the County Governments Act and Article 251(1) of the Constitution, certiorari, a declaration that she remained the lawful Board member, findings on rights violations, and damages. The Respondents countered that her appointment was itself illegal because she was a serving public officer who failed to disclose that status, that the County Assembly had voted overwhelmingly for removal, and that the court should not impede county assembly processes. The court framed three issues: legality of the appointment, fairness of the termination, and entitlement to reliefs. It held that the Petitioner, as a Ministry of Health employee, was a public officer under Article 260 of the Constitution and was disqualified under section 58(3)(b) of the County Governments Act; her non-disclosure breached Chapter Six, constituting a valid removal ground under Article 251(1)(a). However, it also found the termination procedurally flawed: removal power vests in a 75% vote of the county assembly, not the Governor, and no evidence showed a petition before the Assembly or that the Petitioner was heard. Notwithstanding, since her contract was void ab initio for illegality, the court could not enforce her claimed rights, applying the illegality doctrine from Five Forty Aviation v Lanoe. The petition was dismissed in its entirety with no orders as to costs.

Key legal issues

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01

Legality of the Petitioner's appointment to the Board

Holding

The appointment was illegal; the Petitioner was a serving public officer in the Ministry of Health and thus disqualified under section 58(3)(b) of the County Governments Act.

Reasoning

Article 260 of the Constitution defines a public office as one in the national government, county government or public service remunerated from public funds. The Petitioner was a Senior Personal Secretary in the Ministry of Health on unpaid leave, which did not sever her status as a public officer. Section 58(3)(b) requires that a Board member not be a state or public officer. Her non-disclosure of this status breached Chapter Six on leadership and integrity.

02

Validity of the ground for removal

Holding

There was a valid ground for removal under Article 251(1)(a) of the Constitution — serious violation of the Constitution including Chapter Six — because the Petitioner served without disclosing her public officer status.

Reasoning

Failure to disclose that she was already a public officer portrayed dishonesty and contravention of Article 73 of the Constitution. The court relied on Nicholas Rono v County Secretary, County Government of Bomet on concealment of dual public offices placing a person in bad standing for public office, and found the Petitioner's conduct breached the Leadership and Integrity Act and the Public Officer Ethics Act.

p. 7
03

Procedural fairness of the termination

Holding

The termination was procedurally flawed: the Governor had no power under section 58(5) to remove a Board member unilaterally, and the Respondents adduced no evidence of a petition before the County Assembly or that the Petitioner was heard.

Reasoning

Section 58(5) requires removal by a vote of not less than 75% of all members of the county assembly on Article 251(1) grounds. The termination letter directing the Petitioner to clear her desk within 12 hours constituted termination by the Governor. The Respondents tendered no evidence that the Assembly deliberated the Joint Committee's Report or that the Petitioner was informed of allegations or given a hearing as required under Article 47.

p. 8
04

Entitlement to reliefs

Holding

No relief was available because the Petitioner's appointment/contract was void ab initio for illegality, and courts do not enforce rights under illegal contracts.

Reasoning

Applying the guidelines in Five Forty Aviation Limited v Erwan Lanoe (citing Kenya Airways v Satwant Singh Flora), no person can claim a right or remedy under an illegal transaction in which she participated; a statute-prohibited contract is unenforceable whether the parties meant to break the law or not. Since the appointment offended the Constitution, the County Governments Act, the Public Officer Ethics Act and the Leadership and Integrity Act, the petition failed.

p. 8

Legal principles established

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  • A person serving in the national government is a public officer disqualified from appointment as a member of a County Public Service Board under section 58(3)(b) of the County Governments Act
  • Removal of a member of a County Public Service Board requires grounds under Article 251(1) of the Constitution and a 75% vote of the county assembly, not a unilateral decision of the Governor
  • A court will not enforce rights arising from a contract that is void for illegality

Court orders

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  1. 1.The Petition is dismissed in its entirety
  2. 2.There shall be no orders as to costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 10, 25, 27, 28, 41, 47, 48, 50, 73, 75, 159(2)(d), 162(2), 174, 175, 232, 235, 251(1), 260
  • County Governments Act, 2012Sections 30(2)(k), 57, 58(1)(b), 58(3), 58(4)(a), 58(5)
  • Employment and Labour Relations Court Act (formerly Industrial Court Act)Section 12
  • Employment ActSections 3(3), 45
  • Leadership and Integrity Actgeneral
  • Public Officer Ethics Actgeneral
  • Public Service Commission Human Resource Policies and Procedures ManualSection E.8(1)
  • Evidence Actgeneral (certified proceedings)
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Laikipia County Assembly Standing OrdersSection 21(1) Part V
  • Pensions ActCap. 189 (referenced in Manual E.8(4))

Cases cited (12)

  • United States International University (USIU) v Attorney General
    [2012] eKLR
  • Kisumu County Public Service Board & another v Samuel Okuro & 7 Others
    [2018] eKLR
  • Cecilia Wangechi Ndungu v County Government of Nyeri & another
    [2014] eKLR
  • Narok County Government & Another v Richard Bwogo Birir & Another
    [2015] eKLR
  • Ol Pejeta Ranching Limited v David Wanjau Mohoro
    [2017] eKLR
  • Speaker of the Senate & Another v Attorney General & 4 Others
    [2013] eKLR
  • Commission for the Implementation of the Constitution v National Assembly of Kenya & 2 Others
    [2013] eKLR
  • Frederick Otieno Outa v Jared Odoyo Okello & 4 others
    [2014] eKLR
  • Nicholas Rono v County Secretary County Government of Bomet & 3 others
    [2020] eKLR
  • Meru County Public Service Board v Clerk County Assembly, Meru & 2 others
    [2019] eKLR
  • Five Forty Aviation Limited v Erwan Lanoe
    [2019] eKLR
  • Kenya Airways Limited v Satwant Singh Flora
Jurisdiction invoked
Article 162(2)(a) of the Constitution read with Section 12 of the Industrial Court (now Employment and Labour Relations Court) 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, "Esther Nyaguthii Wanjau v Governor, Laikipia County & another [2020] KEELRC 136 (KLR)", Case Analysis (2020). Petition (ELRC Nyeri), filed 12th June 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/136/eng@2020-12-11

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