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ELRCPartially AllowedPetition No 11 of 2020· [2020] KEELRC 1924 (KLR)

Evalyne Cherotich Rono v County Government of Bomet & others [2020] KEELRC 1924 (KLR)

Employment and Labour Relations Court (High Court) at Eldoret
30 October 2020
ANAbuodha Jorum Nelson
2,368 words in judgment
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The bottom line

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Bomet County's 'release' of its County Secretary was actually an unfair termination, costing the county over Kshs 4.5 million in compensation.

What this practically means

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Executive summary

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The petitioner, appointed County Secretary of Bomet County Government by letter dated 23rd October 2017 to serve until a new Executive Committee was constituted after the 2022 general election, received a letter dated 1st April 2020 'releasing' her to the National Government, from which she had been seconded, citing only 'prevailing circumstances'. She filed a constitutional petition seeking declarations of malicious, unlawful removal and constructive dismissal, certiorari to quash the decision, and punitive damages. The respondents, deponing through Governor Dr. Hillary Barrack, maintained she was merely released from secondment in line with the secondment letter of 30th August 2018 and the PSC three-year secondment policy, not terminated. The court held the petition raised no serious constitutional questions, noting a trend of counsel invoking the Constitution for ordinary employment disputes covered by the County Government Act, Employment Act and Public Service Act. On the merits, it found the release letter, by any interpretation, effectively terminated the contract. The PSC policy could not justify unprocedural termination, and any reason for premature termination had to be disclosed and subjected to due process. The abrupt termination without a disclosed or valid reason was disproportionate and unfair, meriting maximum compensation. The court awarded one month's salary in lieu of notice, twelve months' salary for unfair termination, and pro-rata gratuity for twelve months, subject to taxes and statutory deductions. The declarations and certiorari sought were not granted. Judgment was delivered at Eldoret on 30th October 2020 by Abuodha Jorum Nelson, J.

Key legal issues

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01

Character of the letter dated 1st April 2020

Holding

The letter, though styled a 'release to the National Government', effectively terminated the petitioner's contract with the county government

Reasoning

The court rejected the respondents' characterization of a mere procedural release from secondment. Reading the letter, which cited only undisclosed 'prevailing circumstances' and directed processing of dues, the court found it brought to an end the contract of 23rd October 2017, hence a termination requiring justification under the Employment Act.

p. 3
02

Conflict between the appointment contract and the secondment policy

Holding

The three-year secondment policy could not override the contractual terms nor justify premature termination without due process

Reasoning

Clause B33(1) of the PSC Manual makes secondment renewable and does not oblige release where that release would amount to unprocedural termination. Even if the three-year tenure applied, the respondents failed to rely on it in the release letter, instead citing 'prevailing circumstances', and gave no disciplinary process under the Employment Act.

p. 4
03

Suitability of the constitutional petition format

Holding

The dispute raised ordinary employment issues adequately covered by statute, not serious constitutional violations

Reasoning

The court noted the trend of counsel filing constitutional petitions for ordinary employment disputes and held that the issues were covered by the County Government Act, Employment Act and Public Service Act, so constitutional invocation was unnecessary. It nonetheless determined the matter and awarded statutory compensation.

p. 3

Legal principles established

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  • A release letter that effectively ends the employment contract constitutes termination, whatever label the employer gives it
  • An employer relying on secondment policy to end employment must disclose a valid reason and subject the employee to due process; failure attracts maximum compensation

Court orders

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  1. 1.One month's salary in lieu of notice (Kshs 272,500)
  2. 2.Twelve months' salary for unfair termination of service (Kshs 3,270,000)
  3. 3.Pro-rata gratuity for 12 months (Kshs 1,013,700)
  4. 4.The awards to attract taxes and statutory deductions

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 187(2)
  • Constitution of Kenya, 2010Article 189(1)(b)
  • Constitution of Kenya, 2010Article 236
  • Constitution of Kenya, 2010Article 260
  • County Government ActSections 44, 44(1)(c), 73(3), 138
  • Employment ActSections 43, 45
  • Public Service ActNot specified
  • Public Service Commission Guidelines on Secondment in the Public ServiceParagraph 2.0(ii)
  • PSC Human Resource Policies and Procedures Manual, 2016Clause B33(1)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Act; petition raising alleged violations of Articles 236 and 260 of the Constitution

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Evalyne Cherotich Rono v County Government of Bomet & others [2020] KEELRC 1924 (KLR)", Case Analysis (2020). Petition No 11 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1924/eng@2020-10-30

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