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 AllowedPetition dated 4th March 2020· [2021] KEELRC 1072 (KLR)

Pauline Kahiga Waititu v County Government of Nairobi & another [2021] KEELRC 1072 (KLR)

Employment and Labour Relations Court
19 August 2021
OMOnesmus N. Makau
4,396 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

#

Nairobi's Employment Court ruled a governor cannot fire a County Executive Committee Member without giving a genuine reason, awarding Sh3 million in damages.

What this practically means

#

Executive summary

#
The Petitioner, appointed on 22.3.2019 as CECM for Devolution, Public Service and Sub-County Administration for a three-year term and given acting duty as CECM Finance and Economic Planning on 24.9.2019, was terminated by the Governor's letter dated 3.2.2020 pursuant to section 31(a) of the County Governments Act, citing reorganization. She petitioned for declarations of unfair dismissal, reinstatement, prohibition, and alternatively damages and accrued salary. The 2nd Respondent did not file a response. The court framed two issues: whether due process was followed, and entitlement to reliefs. Following the Court of Appeal in County Government of Nyeri v Cecilia Wangechi Ndungu, the court held that although a Governor may dismiss a CECM under section 31(a), the power must be exercised reasonably, only when appropriate or necessary, and with reasons. Because the Governor cited no reason (the later allegation of gross misconduct being unverified by documentary evidence), the termination of her substantive appointment was arbitrary and violated her right to fair administrative action under Article 47. However, relief was substantially limited: she held the Finance position only in acting capacity, which was substantively filled, and the Governor had since been impeached; reinstatement, the declaration, prohibition and the anticipatory salary claim were all refused. The court awarded Kshs. 3,000,000 as constitutional damages payable by the 1st Respondent, plus costs and interest at court rate. Judgment delivered at Nairobi on 19 August 2021 by Onesmus N. Makau, J.

Key legal issues

#
01

Whether due process was followed in terminating the Petitioner's appointment as CECM

Holding

No - the termination of her substantive appointment was arbitrary, unreasonable and violated Article 47 because no reason was cited.

Reasoning

The termination letter cited 'reorganization' as the reason, but the court relied on the Court of Appeal's decision in County Government of Nyeri v Cecilia Wangechi Ndungu holding that section 31(a) power, though exercisable at pleasure, must be exercised reasonably and only when appropriate or necessary, which requires reasons. The alleged gross misconduct was unverified by documentary evidence. Having cited no reason for exercising his discretion, the Governor acted arbitrarily and violated the petitioner's Article 47 right to fair administrative action.

p. 5
02

Whether the petitioner was entitled to reinstatement or declarations concerning the CECM Finance position

Holding

No - she held that position only in acting capacity and it was substantively filled.

Reasoning

The petitioner was appointed Ag. CECM Finance while still substantive CECM Devolution; when a substantive CECM Finance was appointed, she lost the acting position fairly. Reinstatement was also unavailable since the Governor had been impeached and the CEC dissolved, and no vacancy existed in the office.

p. 5
03

What remedies flow from the unfair and unlawful termination

Holding

Damages of Kshs. 3,000,000 for violation of Article 47, awarded against the 1st respondent, plus costs and interest.

Reasoning

Having found the contract unfairly and unreasonably terminated, the court had jurisdiction to award constitutional damages payable by the 1st respondent because the 2nd respondent acted on behalf of the County Government. Guided by awards in John Gakuo and Ol Pajeta Ranching, and the petitioner's 3-year contract and legitimate expectation, the court awarded Kshs. 3,000,000.

p. 6
04

Whether the 2nd Respondent lacked mandate to dismiss the petitioner due to court orders barring him from office

Holding

Immaterial; the court agreed with the Solicitor General's advice that the orders did not bar him from exercising his functions as Governor.

Reasoning

The petitioner argued the Governor was barred from office by bail terms in an anti-corruption case. The court held this issue was immaterial since it had already found the termination unlawful, and endorsed the Solicitor General's advice that the court order did not bar the Governor from exercising his substantive functions.

p. 5

Legal principles established

#
  • Under section 31(a) of the County Governments Act a Governor may dismiss a CECM at pleasure, but the power must be exercised reasonably, only when appropriate or necessary, and for reasons that make the dismissal appropriate or necessary.
  • A CECM whose substantive appointment is terminated under section 31(a) must be informed of the actual reason for termination after genuine investigation; failure to cite any reason renders the dismissal arbitrary and a violation of Article 47.

Court orders

#
  1. 1.Declaration that termination of the petitioner's substantive appointment as CECM Devolution, Public Service and Sub-County Administration violated her right to fair administrative action under Article 47 (implied by the holding and award)
  2. 2.Damages of Kshs. 3,000,000 for violation of the petitioner's constitutional right to fair administrative action, payable by the 1st respondent
  3. 3.Costs of the Petition to the petitioner plus interest at court rate from the date of the judgment

Authorities

#

Legislation

  • Constitution of Kenya, 2010Articles 10, 21, 22, 23, 27, 28, 41, 47, 50, 73, 179(1), 179(2)(a), 179(2)(b), 179(6), 232
  • County Governments ActSections 30(2)(d), 30(2)(e), 31(a), 40, 42, 42(2)
  • Fair Administrative Action ActSection 4
  • Employment ActSection 49
  • Public Finance Management Actnot specified
  • Anti-Corruption and Economic Crimes Actnot specified
  • ELRC Procedure RulesRule 28(3)

Cases cited (11)

  • Umuro Roba Godana v County Government of Marsabit & ano
    [2017] eKLR
  • Richard Bwongo Birir v Narok County Government and 2 others
    [2014] eKLR
  • County Government of Nyeri & ano v Cecilia Wangechi Ndung'u
    [2014] eKLR / [2015] eKLR
  • Republic v Independent Electoral and Boundaries Commission (IEBC) v Ex-parte National Super Alliance (NASA) Kenya & 6 Others
    [2017] eKLR
  • John Gakuo & ano v County Government of Nairobi & 3 others
    [2018] eKLR
  • Kenya Human Rights Commission & ano v Non-Governmental Organisations Co-ordination Board & ano
    [2018] eKLR
  • Raiply Woods (K) Ltd & ano v Baringo County & 3 others
    [2017] eKLR
  • Hellen Chepkirui Rono v County Government of Kericho & 2 others
    [2018] eKLR
  • Jamin Shtsukane Muliru v Governor Wycliff Ambetsa Oparanya & ano
    [2016] eKLR
  • County Government of Garissa & ano v Idriss Aden Mukhtar & 2 others
    [2020] eKLR
  • Ol Pajeta Ranching Limited v David Wanjau Muhoro
    [2017] eKLR
Jurisdiction invoked
Articles 22, 23, 27, 41, 47, 50 and 73 of the Constitution; County Governments Act

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Pauline Kahiga Waititu v County Government of Nairobi & another [2021] KEELRC 1072 (KLR)", Case Analysis (2021). Petition dated 4th March 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1072/eng@2021-08-19

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