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ELRCPartially AllowedNot stated in the judgment· [2020] KEELRC 1278 (KLR)

Charles Victor Orodi v Busia County Government & 3 others [2020] KEELRC 1278 (KLR)

Employment and Labour Relations Court
16 April 2020
MNMathews N. Nduma
839 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 confirmed that county officials cannot be pushed out of office without following strict constitutional removal procedures.

What this practically means

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Executive summary

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The claimant, formerly Secretary to the Busia County Public Service Board appointed in May 2014 for a fixed six-year term, was sent on indefinite compulsory leave by the Governor by a letter dated 12th February 2019, on accusations of nepotism, incompetence, bribery and insubordination, after the respondents had advertised his position on 23rd January 2019 despite there being no vacancy. The respondents raised a preliminary objection contending that the court lacked jurisdiction under Article 185(3) of the Constitution, Section 15 of the County Governments Act and Standing Order 198 of the Busia County Assembly. The court held that the dispute arises from an employment relationship and that it has jurisdiction under Article 162(2) of the Constitution read with Section 12(1) of the E&LRC Act, 2011, including power to issue conservatory orders to public service employees where sufficient merit and public interest are shown. The court applied Section 58(5) of the County Governments Act, holding that the Secretary to the Board may only be removed on grounds applicable to members of constitutional commissions under Article 251(1) and by a 75% vote of the county assembly. Sending the claimant on compulsory leave by the Governor violated that process. Guided by the Munya Supreme Court decision and decisions concerning removal of county public service board members, the court dismissed the preliminary objection, confirmed the conservatory orders granted ex parte, and awarded costs in the cause. The ruling was delivered online in line with COVID-19 directives.

Key legal issues

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01

Jurisdiction of the ELRC over a dispute concerning the Secretary of a County Public Service Board

Holding

The court has jurisdiction; the dispute arises from an employment relationship under Article 162(2) and Section 12(1) of the E&LRC Act.

Reasoning

The preliminary objection was anchored on Article 185(3) of the Constitution, Section 15 of the County Governments Act and Standing Order 198 of the Busia County Assembly. The court held that the dispute is essentially an employer-employee dispute, which falls squarely within the jurisdiction conferred by Article 162(2) of the Constitution and Section 12(1) of the E&LRC Act as amended, including power to issue conservatory orders to public service employees.

p. 2
02

Whether sending the claimant on compulsory leave violated the prescribed removal process

Holding

Sending the claimant on indefinite compulsory leave violated the process for removal prescribed in Section 58(5) of the County Governments Act and Article 251(1) of the Constitution.

Reasoning

The Secretary to the County Public Service Board is a member of the Board appointed under Section 58 of the County Governments Act and may only be removed on grounds applicable to members of constitutional commissions under Article 251(1) and by a 75% vote of the county assembly. The letter sending the claimant on indefinite compulsory leave pending investigation was issued by the Governor himself, without following that process. The claimant thus disclosed sufficient merit warranting confirmation of the conservatory orders.

p. 2

Legal principles established

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  • The Employment and Labour Relations Court has jurisdiction over employment disputes of public officers, including applications for conservatory orders in respect of any employee in public service where sufficient merit and public interest are disclosed.
  • The Secretary of a County Public Service Board may only be removed on the grounds set out for removal of a member of a constitutional commission under Article 251(1) of the Constitution and by a vote of not less than seventy-five percent of all members of the county assembly under Section 58(5) of the County Governments Act.

Court orders

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  1. 1.The preliminary objection is dismissed for lack of merit
  2. 2.The conservatory order granted at the ex parte stage is confirmed as prayed for in the application
  3. 3.Costs in the cause

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 185(3)
  • Constitution of Kenya, 2010Article 162(2)
  • Constitution of Kenya, 2010Article 251(1)
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Constitution of Kenya, 2010Article 48
  • County Governments Act No. 17 of 2012Section 15
  • County Governments Act No. 17 of 2012Section 58
  • Employment and Labour Relations Court Act, 2011Section 12(1)
  • Busia County Assembly Standing OrdersStanding Order 198
  • Civil Procedure RulesOrder 21 rule 1
  • Civil Procedure Act (chapter 21 of the Laws of Kenya)Section 18

Cases cited (4)

  • Gatirau Peter Munya and Dickson Mwenda Kithinji & 3 others
    [2014] eKLR, Supreme Court of Kenya Petition No.2B of 2014
  • Mundia Njeru Gateria vs Embu County Government
  • Hussein Roba Boru vs County Government of Isiolo and 2 others
    (2015) eKLR
  • County Assembly of Kisumu and 2 others vs Kisumu County Assembly Service Board and 6 others
    (2015) eKLR
Jurisdiction invoked
Article 162(2) of the Constitution of Kenya, 2010 read with Section 12(1) of the Employment and Labour Relations Court Act, 2011 as amended

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, "Charles Victor Orodi v Busia County Government & 3 others [2020] KEELRC 1278 (KLR)", Case Analysis (2020). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1278/eng@2020-04-16

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