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ELRCAllowedNot stated on the face of the ruling (Notice of Motion, Employment and Labour Relations Court)· [2020] KEELRC 1274 (KLR)

John Saul Naviava v Franklin Esipila & another; County Government of Vihiga & another (Interested Parties) [2020] KEELRC 1274 (KLR)

Employment and Labour Relations Court
16 April 2020
MNMathews N. Nduma
1,179 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled a county board secretary can only be removed through the full constitutional process, not by forced leave and handover.

What this practically means

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Executive summary

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The applicant, the Secretary of the Vihiga County Public Service Board, was appointed on a six-year fixed contract from 31st March 2017. By a letter dated 25th February 2020 the 1st respondent directed him to proceed on 60 days compulsory/administrative leave pending investigation of undisclosed acts of commission and omission, and to hand over office on 26th February 2020 to a Board member (the 2nd interested party), with the 1st interested party poised to assume the office. The applicant moved the court seeking conservatory orders, arguing that the action violated section 58 of the County Governments Act, No. 17 of 2012, and that the 1st interested party lacked the qualifications for the office. The respondents opposed the application, deposing through the Board Chairman that the applicant was merely on paid administrative leave and had not been removed, and urged that the application was premature and misconceived. Nduma J held that section 58 of the County Governments Act governs the appointment of the Secretary, and relying on Wasilwa J's decision in Shukuri Alawso Muhamed vs Wajir County Secretary and the Attorney-General's advisory of 12th October 2015, that the Secretary is a member of the Board whose removal is governed by section 58(5) mutatis mutandis, requiring grounds under Article 251(1) of the Constitution and a 75% vote of the County Assembly. Applying the Supreme Court's test in Gatirau Peter Munya and Ongaya J's decision in Mundia Njeru Gateria, the court found the applicant had demonstrated the merit of the petition and the public interest in the independence of County Public Service Boards. The application was granted in terms of prayers 3, 4 and 5 of the Notice of Motion. The ruling was delivered online pursuant to COVID-19 measures with the parties' consent, waiving compliance with Order 21 rule 1 of the Civil Procedure Rules.

Key legal issues

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01

Status of the Secretary of a County Public Service Board and procedure for removal

Holding

The Secretary is a member of the Board and enjoys the protection of section 58(5); administrative leave coupled with handover of office amounts to removal outside the prescribed procedure.

Reasoning

The court relied on section 58 of the County Governments Act, an Attorney-General's advisory of 12th October 2015 as adopted in Shukuri Alawso Muhamed vs Wajir County Secretary, and Mundia Njeru Gateria per Ongaya J, to hold that removal of the Secretary must follow the same substantive grounds and procedure as other Board members, namely grounds under Article 251(1) and a 75% vote of the County Assembly.

p. 3
02

Whether conservatory orders should issue

Holding

The applicant demonstrated the merit of the petition and the public interest in the independence of County Public Service Boards, warranting conservatory orders without pre-determining the merits.

Reasoning

Applying the Supreme Court's enunciation in Gatirau Peter Munya vs Dickson Mwende Githinji & 3 Others, the court found that conservatory orders bear a public-law connotation and should be granted on the inherent merit of the case, bearing in mind public interest and constitutional values. The applicant's contractual appointment, the compulsory leave and handover directions, and the lack of a section 58(5) process established sufficient merit.

p. 3

Legal principles established

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  • The Secretary to the County Public Service Board is a member of the Board, and may only be removed on the grounds and procedure in section 58(5) of the County Governments Act, applied mutatis mutandis
  • Removal of a member of a County Public Service Board requires strict adherence to section 58(5), including a petition to the County Assembly

Court orders

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  1. 1.The application is granted in terms of prayers 3, 4 and 5 of the Notice of Motion (conservatory orders stopping the impugned removal action by the 1st and 2nd respondents and restraining the 1st interested party from assuming or continuing to act as Secretary of the Vihiga County Public Service Board)
  2. 2.Ruling delivered online to the parties with their consent in view of COVID-19 measures restricting court operations

Authorities

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Legislation

  • County Governments ActSection 58(1), 58(5)
  • Constitution of Kenya, 2010Article 251(1)
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Constitution of Kenya, 2010Article 48
  • Civil Procedure RulesOrder 21 rule 1
  • Civil Procedure ActSection 18

Cases cited (3)

  • Shukuri Alawso Muhamed vs Wajir County Secretary and 2 others
    Nairobi E&LRC Cause No. 935 of 2018
  • Gatirau Peter Munya vs Dickson Mwende Githinji & 3 Others
    [2014] eKLR
  • Mundia Njeru Gateria case (E&LRC, Nyeri)
Jurisdiction invoked
Not expressly stated; the court determined a Notice of Motion for conservatory orders under section 58 of the County Governments Act, No. 17 of 2012 and Articles 159(2)(d), 48 and 50 of the Constitution

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, "John Saul Naviava v Franklin Esipila & another; County Government of Vihiga & another (Interested Parties) [2020] KEELRC 1274 (KLR)", Case Analysis (2020). Not stated on the face of the ruling (Notice of Motion, Employment and Labour Relations Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1274/eng@2020-04-16

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