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ELRCDismissed· [2020] KEELRC 935 (KLR)

Sheila Waruguru Githaiga v Governor, Nyeri County & another [2020] KEELRC 935 (KLR)

Employment and Labour Relations Court
28 May 2020
NMNzioki wa Makau
1,019 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A CEC nominee in Kenya who was never sworn in automatically loses the position when the county governor leaves office, even if fully vetted and approved.

What this practically means

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Executive summary

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This judgment of the Employment and Labour Relations Court at Nyeri, delivered by Nzioki wa Makau, J, determined a judicial review application remitted to the Court by the High Court on 16th May 2019 on the basis that the matter concerned employment rights falling under Article 162(2)(b) of the Constitution. The Ex parte Applicant had applied for, been nominated by the late Governor Wahome Gakuru, interviewed, vetted and approved for the position of County Executive Committee Member in charge of Youth, Gender, Sports and Social Services in Nyeri County, but was never sworn in or issued a letter of appointment during the Governor's term. After the Governor's death, the incoming Governor retained and swore in the other CECs and the County Secretary appointed by his predecessor, but excluded the Applicant. She sought an order of mandamus compelling her swearing in, and an order of prohibition barring the appointment of any other person to the office. The Respondents argued she was never appointed and that, in any event, under Article 179(7), CEC members cease to hold office upon a vacancy in the governorship. The Court held that as a putative holder of the office, the Applicant ceased to hold office automatically upon the Governor's death, that no constitutional duty was owed to her, and that the application was an abuse of process. The application was dismissed with costs to the Respondents, the decision being automatically stayed for 14 days under the COVID-19 Practice Directions.

Key legal issues

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01

Effect of Article 179(7) on a CEC nominee upon the Governor's death

Holding

The Applicant, though nominated and vetted, was never sworn in or given a letter of appointment; as a putative holder she ceased to hold office automatically on the Governor's death

Reasoning

Article 179(7) provides that if a vacancy arises in the office of county governor, the members of the county executive committee appointed under clause (2)(b) cease to hold office. The Applicant was only a nominee, never formally appointed. Her nomination therefore lapsed with the demise of Governor Gakuru, leaving the new Governor under no constitutional duty to appoint or swear her in.

p. 2
02

Whether mandamus could compel the Governor to swear in the Applicant

Holding

Mandamus could not issue because the Applicant was never formally appointed and no public duty had been breached

Reasoning

Mandamus compels performance of a public duty. Since the Applicant was not appointed and the constitutional mechanism of Article 179(7) had extinguished the nomination, the 1st Respondent owed no duty capable of enforcement. The retention of other CECs was a matter for the new Governor's discretion and was neither discriminatory nor unfair.

p. 2

Legal principles established

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  • Under Article 179(7) of the Constitution, upon a vacancy in the office of county governor, members of the county executive committee cease to hold office, including putative nominees not yet sworn in

Court orders

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  1. 1.The Judicial Review application is dismissed
  2. 2.Costs awarded to the 1st and 2nd Respondents
  3. 3.The decision is automatically stayed for 14 days in line with the Chief Justice's COVID-19 Practice Directions

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 162(2)(b)
  • Constitution of Kenya, 2010Article 179(2)(b)
  • Constitution of Kenya, 2010Article 179(7)
  • County Governments ActSection 35(3)
  • Chief Justice's Practice Directions to Mitigate COVID-19 dated 16th March 2020General
  • Kenya Gazette Notice 2357 of 20th March 2020 (Vol. CXXII No. 50)General
On appeal from
High Court
Not stated in the judgment
Jurisdiction invoked
Article 162(2)(b) of the Constitution of Kenya 2010, as remitted by the High Court's Ruling of 16th May 2019

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, "Sheila Waruguru Githaiga v Governor, Nyeri County & another [2020] KEELRC 935 (KLR)", Case Analysis (2020). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/935/eng@2020-05-28

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