Leonard Majau Miriti F M’miriti v Tharaka Nithi County Public Service Board & another [2021] KEELRC 1124 (KLR)

Employment and Labour Relations Court

26 July 2021

DMD.K. Njagi Marete

1,952 words in judgment

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The bottom line

A Kenyan court ruled a county government cannot fire staff by claiming the 'pleasure doctrine' without notice, reasons, or a hearing.

What this practically means

Executive summary

The Claimant, a public officer since 1985 who served the Ministry of Education, Meru and Isiolo district hospitals and was later posted to Tharaka Nithi County as Health Administrative Officer at Chuka Level 4 Hospital and then to the Office of the County Governor, received a letter dated 8th September 2017 terminating his employment with effect from 8th August 2017. He sued alleging unfair labour practice and violation of Sections 43 and 45 of the Employment Act and Articles 41 and 47 of the Constitution, seeking a declaration of unconstitutionality, reinstatement, withheld dues and costs. The Respondents justified the termination under the pleasure doctrine - that staff serving in the Office of the Governor end their services with the Governor's term - and questioned the Claimant's employment by the County Public Service Board. The court framed three issues: whether the termination was wrongful, unfair and unlawful; entitlement to reliefs; and costs. Holding that the Respondents complied with none of Sections 41, 43, 45 and 47 of the Employment Act, that no disciplinary proceedings were undertaken, and that the pleasure doctrine was contrary to the new constitutional dispensation, the court found the termination wrongful, unfair and unlawful. Exercising discretion under Section 49(3)(a), it ordered reinstatement without loss of benefits, eligibility for retirement benefits, eight months' compensation (Ksh.501,280), and costs to the Claimant.

Key legal issues

Whether the termination of the Claimant's employment was wrongful, unfair and unlawful

Holding

The termination was wrongful, unfair and unlawful. The letter of 8th September 2017 conveyed termination effective 8th August 2017 on grounds of effluxion of time (the pleasure doctrine), but the Respondents complied with neither substantive nor procedural fairness under Sections 41, 43, 45 and 47 of the Employment Act, and the Claimant was never subjected to any disciplinary proceedings.

Reasoning

The court found the termination letter conveyed a decision taking effect a month earlier on grounds of effluxion of time. It held the Respondents did not comply with Sections 41, 43, 45 and 47 of the Employment Act, contradicting Section 45(1), 45(2)(a), (b), (c) and 45(5). No disciplinary proceedings were undertaken and the reasons were 'not known to the law'. The court rejected the pleasure doctrine defence, noting the Claimant had remained a public officer on secondment to the county public service.

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Whether the Claimant is entitled to the reliefs sought

Holding

Having succeeded on unlawful termination, the Claimant was held entitled to the reliefs sought, including reinstatement under Section 49(3)(a) of the Employment Act despite the lapse of time, because the delay was not his fault and denying reinstatement would deprive him of retirement benefits.

Reasoning

The court weighed the three-year delay and the COVID-19 pandemic disruption against reinstatement, holding the Claimant was not to blame for the delay. It noted the Claimant was at or near retirement age on age grounds, and refusing reinstatement would leave him without retirement benefits following a 'flimsy' termination, which would be inequitable and unjust. The court chose justice over the tensions between the law and equitable outcomes, invoking Section 49(3)(a).

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Legal principles established

Termination of a public officer on the pleasure doctrine/effluxion of time without notice, reasons known to law, or a disciplinary hearing violates Sections 41, 43, 45 and 47 of the Employment Act and is wrongful, unfair and unlawful.
Procedural fairness under Section 41(1) and (2) of the Employment Act requires that an employee be taken through disciplinary proceedings before termination.

Court orders

1.That the claimant be and is hereby reinstated to employment without loss of benefits, promotions and office
2.That the Claimant is ordered to report to work on 27th July, 2021 at 800 hours
3.That in the event the claimant is or has been material for retirement on age ground, he shall be eligible and accessible to all his retirement benefits as per his contract of service
4.Eight (8) months compensation for unlawful termination of employment, i.e. Ksh.62,660 x 8 = Ksh.501,280.00
5.The costs of this cause shall be borne by the Respondent

Authorities

Legislation

Employment Act, 2007 (Cap 226)Section 43(1) and (2)
Employment Act, 2007 (Cap 226)Section 45(1), 45(2)(a), (b), (c), (d) and 45(5)
Employment Act, 2007 (Cap 226)Section 41(1) and (2)
Employment Act, 2007 (Cap 226)Section 47
Employment Act, 2007 (Cap 226)Section 35(1)(c)
Employment Act, 2007 (Cap 226)Section 49(3)(a)
Constitution of Kenya, 2010Article 41(1) and 41(2)(a)
Constitution of Kenya, 2010Article 47(1) and 47(2)
County Government Act, 2012Section 63
County Government Act, 2012Section 77

Cases cited (1)

Cecilia Wangeci Ndungú

Jurisdiction invoked: Employment and labour relations jurisdiction under Article 162(2) of the Constitution (implied; the judgment does not expressly state the basis)

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Leonard Majau Miriti F M’miriti v Tharaka Nithi County Public Service Board & another [2021] KEELRC 1124 (KLR)", Case Analysis (2021). Not stated in judgment text. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1124/eng@2021-07-26

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