Rose Esther Muthoni Wamuiya & 2 others v Governor, Nyandarua County Government & 3 others [2021] KEELRC 783 (KLR)
The bottom line
#A Kenyan court ruled that a Governor cannot fire County Executive Committee members without reasons and a fair hearing, awarding each fired CEC over KShs. 8 million.
What this practically means
#Executive summary
#Key legal issues
#Whether the Employment Act 2007 applies to County Executive Committee members
The Employment Act does not apply to State Officers; the petitioners' terms are regulated by the Constitution and relevant statutes, principles of fair administrative action and rules of natural justice
The court adopted the Court of Appeal's decision in County Government of Nyeri v Cecilia Wangechi Ndungu holding that CEC members, being State Officers under Article 260, fall outside the Employment Act. However, this did not defeat the petition because dismissal was still subject to constitutional fair process requirements and the Fair Administrative Action Act.
Whether the petitioners were accorded fair administrative action before termination
No - the Governor was required to assign valid reasons and follow due procedure before terminating the petitioners, and did not do so
Although Section 31(a) of the County Government Act permits the Governor to dismiss a CEC member he considers it appropriate or necessary, the words 'consider', 'appropriate' and 'necessary' import a requirement of valid, compelling reasons and an opportunity to be heard. The Court of Appeal in Idriss Aden Mukhtar held the pleasure doctrine was not preserved under Section 31(a). The 3rd and 4th respondents were not even notified of the termination process.
Whether the petitioners' constitutional rights were breached
Yes - Articles 47, 50, 41 and 236 of the Constitution were breached
The petitioners were condemned unheard; the Fair Administrative Action Act was not adhered to, flouting Article 47. No fair process under Article 50 was followed. As public officers they could not be dismissed without due process of law under Article 236, and their rights under Article 41 were breached.
Whether the petitioners are entitled to the remedies sought
Partially - each petitioner awarded 12 months' salary compensation plus Kshs. 5,000,000 general damages for constitutional violation
The court found the petitioners' careers were cut short when they had a reasonable expectation to serve for five years. Guided by Section 49 of the Employment Act as endorsed in Idriss Aden Mukhtar, it awarded 12 months' salary for unfair termination and Kshs. 5,000,000 each for the constitutional violation, less statutory deductions, with costs and interest.
Legal principles established
#- The pleasure doctrine was not preserved under Section 31(a) of the County Governments Act; a Governor may dismiss a CEC member under that section only for valid and appropriate reasons and subject to due process
- A public officer cannot be dismissed or removed from office without due process of law under Article 236 of the Constitution
Court orders
#- 1.Each petitioner is awarded compensation equivalent to 12 months' salary (Kshs. 3,428,844) for the unfair and unlawful termination
- 2.The 1st and 2nd respondents to pay each petitioner general damages of Kshs. 5,000,000 for breach and violation of their constitutional rights
- 3.Each petitioner entitled to gross payment of Kshs. 8,428,844 less statutory deductions
- 4.The 1st and 2nd respondents to pay costs of the suit plus interest at court rates from the date of judgment
- Jurisdiction invoked
- Jurisdiction of the Employment and Labour Relations Court over employment disputes of County Executive Committee members (matter filed in the Employment & Labour Relations Court); constitutional petition under Articles 41, 47, 50 and 236 of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Rose Esther Muthoni Wamuiya & 2 others v Governor, Nyandarua County Government & 3 others [2021] KEELRC 783 (KLR)", Case Analysis (2021). Petition No 14 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/783/eng@2021-10-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.