Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedConstitutional Petition (Mandera County; delivered at Nairobi)· [2020] KEELRC 1193 (KLR)

Abdiazizi SheikhMaad & 3 others v Governor Mandera County & 2 others [2020] KEELRC 1193 (KLR)

Employment and Labour Relations Court
29 April 2020
OMOnesmus N. Makau
6,603 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~26 min to read original · ~4 min brief

The bottom line

#

A Kenyan court ruled that county governors cannot dismiss officers at will—every removal needs due process, or the dismissal collapses.

What this practically means

#

Executive summary

#
Four Mandera County officials – three County Executive Committee Members and one Chief Officer (medical services) – petitioned after the Governor terminated their five-year contracts by letters dated 13 February 2020, effective 15 March 2020. They sought declarations that the dismissals breached Articles 27, 28, 41, 48 and 50 of the Constitution, certiorari to quash the dismissals, prohibition against fresh appointments, or alternatively payment of dues for the unexpired contract term. The respondents defended the dismissals as an exercise of the pleasure doctrine under section 31(a) of the County Governments Act and the termination clauses of the contracts. The court framed four issues: whether the petitioners served at the Governor's pleasure, whether due process was followed, whether rights were violated, and entitlement to reliefs. Resolving a split in the Court of Appeal, the court followed Richard Bwogo Birir and held the pleasure doctrine inapplicable under the 2010 Constitution. It found the respondents failed to substantiate the reasons for dismissal and that the petitioners received no show-cause letter or hearing, breaching Article 47, section 4 of the Fair Administrative Actions Act and natural justice. Regarding the Chief Officer, the Governor lacked power to dismiss him, having usurped the County Public Service Board and County Assembly roles, following Samuel Okudo. The court declared the dismissals null and void, granted certiorari and prohibition, but allowed the respondents an alternative of computing and paying gratuity plus salary for the remainder of the contract term within fixed timelines, failing which the review orders remain in force. Costs were awarded to the petitioners.

Key legal issues

#
01

Whether CEC members serve at the pleasure of the Governor under section 31(a) of the County Governments Act

Holding

They do not; the pleasure doctrine has no place in Kenya under the 2010 Constitution and any dismissal must be reasonable, for valid reasons, and follow due process

Reasoning

The court noted a divergence between two Court of Appeal decisions, Ndungu and Birir, and elected to follow Birir. It held that the 2010 Constitution does not permit removal of a public or State officer without due process, while acknowledging that a Governor exercising section 31(a) discretion must act reasonably and for the common good, not arbitrarily or capriciously.

p. 5
02

Whether due process was followed before the dismissal of the 1st to 3rd Petitioners

Holding

No; the dismissals breached Article 47, section 4 of the Fair Administrative Actions Act and the rules of natural justice

Reasoning

Although the dismissal letters stated reasons, the respondents adduced no evidence to substantiate the validity of those reasons once challenged, and the petitioners were never served with a show-cause letter nor accorded an oral hearing. The court held the administrator must both notify reasons and grant an opportunity to make representations.

p. 7
03

Whether the Governor had power to dismiss the 4th Petitioner, a Chief Officer

Holding

He did not; the dismissal was ultra vires as it usurped the roles of the County Public Service Board and the County Assembly

Reasoning

Section 45 of the County Governments Act provides for nomination and appointment of Chief Officers with county assembly approval, but is silent on dismissal. Applying the Court of Appeal's decision in Samuel Okudo, the court held the Governor usurped the County Board's disciplinary role under section 59, denying the 4th Petitioner his statutory right of appeal to the Public Service Commission.

p. 8
04

Whether the petitioners' fundamental rights were violated

Holding

Yes; rights to fair administrative action, fair labour practices and fair hearing under Articles 41, 47 and 50 were violated

Reasoning

The unlawful, arbitrary and ultra vires dismissals denied the petitioners fair administrative action and fair hearing. For the 4th Petitioner, the Governor acting without authority prevented the statutory appeal to the Public Service Commission. For the CEC members, the failure to grant notice and a hearing constituted a violation of Articles 41 and 47.

p. 8

Legal principles established

#
  • The pleasure doctrine is not applicable in Kenya under the current Constitution; public officers may only be removed through due process
  • A public officer cannot be dismissed or subjected to disciplinary action without due process of the law
  • A Governor has no power to dismiss a Chief Officer; such removal requires the County Public Service Board and the County Assembly
  • The right to know reasons and the right to be heard are inseparable in fair administrative action

Court orders

#
  1. 1.Declaration that the 1st respondent's act of relieving the petitioners of their duties violated their rights under Articles 41, 47 and 50 of the Constitution and is null and void
  2. 2.Judicial review orders of certiorari and prohibition quashing the dismissal decision and prohibiting fresh appointments
  3. 3.Liberty granted to the respondents to compute and pay the petitioners gratuity earned up to the date of dismissal plus salary for the remaining contract term as an alternative to the judicial review orders
  4. 4.Respondents to indicate choice of the payment option within 30 days and pay within 90 days; until payment, the vacancies shall not be filled; in default, certiorari and prohibition remain in force
  5. 5.Costs of the petition awarded to the Petitioners

Authorities

#

Legislation

  • Constitution of Kenya, 2010Articles 20, 22, 23(3)(f), 27(1)(2)(3), 28, 41, 47, 48, 50, 176, 183, 236(b), 260
  • County Governments Actsections 30, 31(a), 36, 40(1), 45(1),(2),(4),(5),(6), 57, 59, 77
  • Fair Administrative Actions Actsection 4; section 7(2)(a)(i)
  • Employment Actsections 41 and 45
  • General Provisions and Interpretation Actsection 51

Cases cited (7)

  • County Government of Nyeri & Another vs. Cecilia Wangechi Ndungu
    [2015] eKLR
  • Narok County Government & another v Richard Bwogo Birir & another
    [2015] eKLR
  • David Ogega Kebiro & Another vs. Kisii County Public Service Board & Another
    [2017] eKLR
  • Mumo Matemu vs. Trusted Society of Human Rights Alliance & 5 others
    [2013] eKLR
  • Advisory Reference 2 of 2013; Senate vs. National Assembly
  • Venansio Mbataru Kariuki vs. Governor, County Government of Nyandarua & 2 others
    [2019] eKLR
  • Kisumu County Public Service Board & another v Samuel Okudo & 7 others
    [2018] eKLR
Jurisdiction invoked
Article 23(3)(f) of the Constitution (judicial review where rights are violated) in a constitutional petition under Articles 41, 47 and 50

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Abdiazizi SheikhMaad & 3 others v Governor Mandera County & 2 others [2020] KEELRC 1193 (KLR)", Case Analysis (2020). Constitutional Petition (Mandera County; delivered at Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1193/eng@2020-04-29

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