Geoffrey Kiprotich Sang v Chairman, Board of Directors National Water Harvesting and Storage Authority & another [2020] KEELRC 351 (KLR)
The bottom line
#Kenya's Employment Court confirmed an acting appointment can be revoked without a hearing, and dismissed a petition alleging unfair removal from a temporary CEO role.
What this practically means
#Executive summary
#Key legal issues
#Whether revocation of an acting appointment required notice and a hearing
No; the acting appointment was temporary and held at the pleasure of the employer, and given the EACC investigations the Respondents had valid reason to doubt the Petitioner's integrity and suitability
The court found the acting position was not competitively selected and carried no job security guarantee. The Respondents, having consulted lawyers, revoked the appointment in good faith for governance and accountability reasons after the Petitioner's arrest and EACC investigations into the Turkana Peace Dam tender. Removal from an acting position was not a disciplinary penalty warranting natural justice protections, following John Mark Wambugu v National Sports Fund Board of Trustees.
Whether the 9th Special Full Board meeting was irregularly convened
No; the meeting complied with the Water Act's requirements on convening and quorum and the Petitioner, as secretary, had no voting rights
The Respondents convened the meeting under section 8(c) of the First Schedule of the Water Act upon written application of one third of members, and quorum complied with section 9. The Petitioner's exclusion as secretary did not invalidate the resolutions since he holds no vote. The court found the resolutions were made in accordance with the law.
Whether the Petitioner's constitutional and statutory rights were violated
No proof of violation of Articles 27, 28, 29, 40, 47 or 236 or Sections 5, 44, 45 or 46 of the Employment Act
The court found the Petitioner failed to adduce evidence of malice and did not demonstrate discrimination under Article 27. The revocation did not touch his substantive position as Chief Engineer, which remained intact with access to his office, so there was no constructive dismissal or breach of the Employment Act provisions alleged.
Legal principles established
#- An acting appointment is temporary, held at the pleasure of the employer, and its revocation without a hearing does not attract the doctrine of natural justice where no law protecting the position is invoked
- A party alleging constitutional violation must plead and prove the violation with precision and adduce evidence
Court orders
#- 1.The petition is dismissed in its entirety
- 2.No orders for costs in view of the subsisting relationship between the Petitioner and the Respondents
- Jurisdiction invoked
- Article 23(3) of the Constitution (enforcement of Bill of Rights before the Employment and Labour Relations Court)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Geoffrey Kiprotich Sang v Chairman, Board of Directors National Water Harvesting and Storage Authority & another [2020] KEELRC 351 (KLR)", Case Analysis (2020). Petition dated 4th May 2020 (ELRC, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/351/eng@2020-10-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.