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 No. 2 of 2020· [2021] KEELRC 1266 (KLR)

Nicholas Ngeno v Governor Kericho County Government & County Government of Kericho [2021] KEELRC 1266 (KLR)

Employment and Labour Relations Court of Kenya
7 July 2021
HWHellen Wasilwa
4,478 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

#

Kericho's Governor unlawfully fired a county minister without County Assembly approval or a fair hearing, costing taxpayers over Kshs. 8 million in damages.

What this practically means

#

Executive summary

#
The petitioner, appointed County Executive Committee member for Lands, Housing and Physical Planning in Kericho County in June 2013, stepped aside in November 2015 pending EACC investigations arising from his previous employment with the defunct Municipal Council of Eldoret, and was arrested and charged in October 2016 with corruption-related offences. On 16th January 2017 the Governor removed him by letter citing corruption charges and absence from office for over one year, invoking section 40(1)(d) and (f) of the County Government Act. The charges were withdrawn in December 2017 on the technicality that the EACC was not properly constituted. The court framed four issues: validity of reasons for termination, adherence to due process, breach of constitutional rights, and entitlement to relief. It held that removal under section 40(1) required the county assembly select committee procedure in section 40(2)-(6); there was no evidence of any assembly resolution, so the Governor acted on his own motion unlawfully and without affording the petitioner a hearing. The court further held that criminal proceedings are parallel to, and cannot replace, a fair internal disciplinary process, and that the petitioner's rights under Articles 41 and 47 of the Constitution were breached. The petition was allowed in part: the petitioner received one month's salary in lieu of notice (Kshs. 350,000), twelve months' compensation (Kshs. 4,200,000), gratuity of Kshs. 1,844,500 for the unexpired 17 months, and general damages of Kshs. 2,000,000, all subject to statutory deductions, with costs plus interest to be paid by the respondent. Reinstatement was not granted.

Key legal issues

#
01

Whether the Governor had power to remove the petitioner under section 40(1)(d) and (f) of the County Government Act without county assembly involvement

Holding

Removal under section 40(1)(d) and (f) required the county assembly select committee procedure; the Governor acted on his own motion in breach of the law and without giving the petitioner an opportunity to be heard.

Reasoning

Section 40(1)(d) and (f) allows removal for failure to attend three consecutive CEC meetings and for gross violation of the Constitution or any other law, but the procedure in subsections (2) to (6) requires a county assembly motion and select committee investigation. The court found no evidence of any assembly resolution, so the Governor acted ultra vires and denied the petitioner a hearing, contrary to the decision in Narok County Government v Richard Bwogo Birir.

p. 6
02

Whether pending criminal charges justified the termination

Holding

Criminal charges do not obviate the need for a fair internal disciplinary process; termination without one breached the petitioner's rights under Articles 41 and 47 of the Constitution.

Reasoning

The court held that the criminal process is different and parallel to the internal disciplinary process, and only a proper disciplinary hearing could have established valid reasons for termination. The charges were withdrawn on a technicality (EACC not properly constituted), but even so the petitioner should have been subjected to a fair administrative process before removal.

p. 7
03

Remedies for the unconstitutional and unfair removal

Holding

The petitioner was awarded one month's salary in lieu of notice, twelve months' compensation, gratuity for the unexpired 17 months of the contract, and general damages of Kshs. 2 million, plus costs and interest.

Reasoning

Having found breaches of Articles 41 and 47, the court awarded notice pay, 12 months' compensation for unfair termination, gratuity at 31% of annual basic salary for the remainder of the contract period, and constitutional damages, holding that the compensation was pegged on the less than two years remaining before expiry of the term.

p. 7

Legal principles established

#
  • A CEC member removed under section 40 of the County Government Act is entitled to the procedure set out in section 40(2)-(6), including county assembly involvement; a Governor cannot unilaterally remove a CEC on section 40 grounds without an assembly resolution.
  • Criminal proceedings against a state officer run parallel to, and do not substitute for, a fair internal disciplinary process before removal from office.

Court orders

#
  1. 1.Payment of 1 month salary in lieu of notice of Kshs. 350,000
  2. 2.Payment of 12 months' salary as compensation for unfair and unjustified termination of Kshs. 4,200,000
  3. 3.Payment of gratuity at 31% of the annual basic salary for the remaining 17 months of the contract, Kshs. 1,844,500
  4. 4.Award of general damages of Kshs. 2,000,000 for breach of the petitioner's constitutional rights
  5. 5.All sums subject to statutory deductions
  6. 6.Respondent to pay costs of the suit plus interest at court rates from the date of judgment

Authorities

#

Legislation

  • Constitution of Kenya, 2010Articles 10, 41, 47, 179(2), 183, 236, 260
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013Rule 4
  • County Government Act, No. 17 of 2012Sections 30(2)(e), 31(a), 40(1), (2)-(6)
  • Fair Administrative Action Act, 2015Section 4
  • Anti-Corruption and Economic Crimes ActSections 45(2)(b), 45(a)(3), 46, 48(1), 62(1)
  • Employment ActSections 41, 45(2)

Cases cited (6)

  • County Government of Garissa and another v Idris Aden Mukhtar and 2 others
    [2020] eKLR
  • County Government of Nyeri and another v Cecilia Wangeci Ndugu
    [2015] eKLR
  • Narok County Government v Richard Bwogo Birir and another
    [2015] eKLR
  • Walter Ogal Anuro v Teachers Service Commission
    [2013] eKLR
  • Communication Commission of Kenya & 5 others v Royal Media Services & 5 others
    Petition Number 14, 14A, 14B & 14C of 2014
  • Republic v The Principal Secretary, Ministry of Internal Security and another Ex-parte Schon Noorani & Another
    [2018] eKLR
Jurisdiction invoked
Articles 10, 41, 47 and 236 of the Constitution of Kenya 2010 read with Rule 4 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Nicholas Ngeno v Governor Kericho County Government & County Government of Kericho [2021] KEELRC 1266 (KLR)", Case Analysis (2021). Petition No. 2 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1266/eng@2021-07-07

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