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ELRCDismissedPetition dated 4th May 2020 (ELRC, Nairobi)· [2020] KEELRC 351 (KLR)

Geoffrey Kiprotich Sang v Chairman, Board of Directors National Water Harvesting and Storage Authority & another [2020] KEELRC 351 (KLR)

Employment and Labour Relations Court
16 October 2020
3,754 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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Eng. Geoffrey Kiprotich Sang, the Chief Engineer of the National Water Harvesting and Storage Authority, petitioned the Employment and Labour Relations Court seeking declarations that his suspension, removal and revocation of his appointment as Acting Chief Executive Officer were malicious and unlawful, that the 9th Special Full Board Meeting of 28th April 2020 was illegally convened, injunctions against removal, orders of certiorari to quash his revocation and the appointment of Sharon Obonyo as Acting CEO, and a declaration of discrimination under Article 27. He alleged violations of Articles 10, 27, 28, 29, 41, 47 and 236 and Sections 5, 44, 45 and 46 of the Employment Act. The Respondents, chaired by Erick Okeyo, justified the revocation on grounds of the Petitioner's irregular award of the Turkana Peace Dam tender to J. K. Investment Kenya Limited, related EACC investigations, and his arrest, maintaining that the meeting was properly convened and quorate under the Water Act. The court framed three issues: malice, irregularity of the meeting, and entitlement to relief. It found no evidence of malice, held the acting appointment was temporary and held at the pleasure of the employer with no guarantee of job security, and that the Respondents had valid reason to doubt the Petitioner's integrity given the investigations. The meeting complied with the Water Act on quorum, and the Petitioner as board secretary held no voting rights. No violation of constitutional or Employment Act rights was proved, and the substantive Chief Engineer position remained intact. The petition was dismissed in its entirety with no order for costs given the subsisting relationship between the parties.

Key legal issues

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01

Whether revocation of an acting appointment required notice and a hearing

Holding

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

Reasoning

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.

p. 5
02

Whether the 9th Special Full Board meeting was irregularly convened

Holding

No; the meeting complied with the Water Act's requirements on convening and quorum and the Petitioner, as secretary, had no voting rights

Reasoning

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.

p. 4
03

Whether the Petitioner's constitutional and statutory rights were violated

Holding

No proof of violation of Articles 27, 28, 29, 40, 47 or 236 or Sections 5, 44, 45 or 46 of the Employment Act

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 1.The petition is dismissed in its entirety
  2. 2.No orders for costs in view of the subsisting relationship between the Petitioner and the Respondents

Authorities

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Legislation

  • Constitution of KenyaArticles 10, 23(3), 27, 28, 29, 40, 41, 47, 48, 50, 159(2)(d), 226, 236
  • Employment ActSections 5, 43, 44, 45, 46
  • Water Act 2016Sections 17(4), 18, 33(4), First Schedule sections 8(c) and 9
  • Fair Administrative Actions ActSection 4(3)(a)
  • Public Finance Management Act 2012
  • State Corporations Act
  • Mwongozo Code of Governance for State CorporationsClauses 1.8.4, 1.19
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B

Cases cited (9)

  • Geothermal Development Company Limited v Attorney General and 3 others
  • Joseph Mbalu Mutava v Attorney General & another
    [2014] eKLR
  • Fredrick Saundu Amolo v Principal Namanga Mixed Day Secondary School & 2 Others
    (2014) eKLR, Cause No. 747 of 2014
  • Minister of Health & Others v Treatment Action Campaign & Others
    (2002) 5 LRC 216
  • Solai Ruiyobei Farm Limited v Registrar of Companies
    Judicial Review No. 14 of 2018
  • John Mark Wambugu v National Sports Fund Board of Trustees
    [2019] eKLR
  • John Harun Mwau v Independent Electoral and Boundaries Commission & Another
    [2013] eKLR
  • Anarita Karimi Njeru v Republic
  • Kenneth Alex Mugwi Mwangi v The Board of Directors, National Water Harvesting and Storage Authority
    ELRC Judicial Review Application No. 10 of 2020 Nairobi
Jurisdiction invoked
Article 23(3) of the Constitution (enforcement of Bill of Rights before the Employment and Labour Relations Court)

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, "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.