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ELRCDismissedEmployment and Labour Relations Claim (Memorandum of Claim dated 19th September, 2018)· [2021] KEELRC 1277 (KLR)

Kilelson Mutai v Governor County Govt of Bomet & 2 others [2021] KEELRC 1277 (KLR)

Employment and Labour Relations Court
8 July 2021
HWHellen Wasilwa
2,600 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~10 min to read original · ~4 min brief

The bottom line

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A Kenyan court dismissed a chief officer's Sh15.6 million unfair dismissal claim because his appointment had skipped the legally required public recruitment process.

What this practically means

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Executive summary

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The claimant, Kilelson Mutai, sued the County Government of Bomet and the Bomet County Public Service Board alleging wrongful dismissal and unlawful termination, contending that his October 2013 appointment as Chief Officer Administration was on permanent and pensionable terms, that its later conversion to contract was illegal and void, and that his August 2018 termination on the asserted lapse of a contract pegged to the former governor was unlawful. He sought declarations, reinstatement and compensation of Kshs. 15,601,996/-, or alternatively Kshs. 80,160,000/-, plus costs. The respondents denied lawfully appointing him, asserting that the recruitment was not advertised or competitively sourced as required by section 45(1)(a) of the County Governments Act, and that the contract was therefore an illegality. The claimant's own evidence admitted the position was not advertised nor competitively sourced, and the Board's witnesses confirmed the statutory recruitment process was not followed and that the governor is not empowered to appoint chief officers. The court held that competitive recruitment under section 45(1)(a) is mandatory and requires advertisement by the County Public Service Board before nomination by the Governor, vetting by the County Assembly, and appointment. Since no advertisement was ever placed, the appointment on permanent and pensionable terms was irregular and illegal, and a court cannot sanction an illegality. The claim was dismissed in its entirety with no order of costs.

Key legal issues

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01

Whether the claimant's appointment as Chief Officer complied with section 45 of the County Governments Act

Holding

The appointment was irregular and illegal because the position was never advertised and the claimant was not competitively sourced

Reasoning

Section 45(1)(a) prescribes that a chief officer must be competitively sourced, which requires advertisement by the County Public Service Board, shortlisting, interviews, and forwarding of names to the Governor for nomination and then vetting by the County Assembly. The claimant admitted on cross-examination that his position was never advertised nor competitively sourced. The Board's witnesses confirmed the recruitment did not follow the statutory procedure.

p. 4
02

Whether the claimant's employment on permanent and pensionable terms was lawful and protectable under Article 236 of the Constitution

Holding

No valid employment relationship on permanent and pensionable terms existed because the underlying contract was an illegality the court will not sanction

Reasoning

The claimant argued that his employment was protected under Article 236 and could only be terminated in accordance with the Constitution and the Employment Act. The court held, however, that the appointment by the Governor on permanent and pensionable terms was irregular and illegal, and that a court cannot be the source of sanctioning an illegality. The claimant also failed to demonstrate the steps leading to his appointment by the Governor.

Legal principles established

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  • Section 45(1)(a) of the County Governments Act requires competitive recruitment of chief officers, which entails advertisement by the County Public Service Board before nomination and appointment
  • A court cannot sanction or validate an illegally procured appointment

Court orders

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  1. 1.The claimant's claim is dismissed in its entirety
  2. 2.No order of costs

Authorities

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Legislation

  • Constitution of Kenya, 2012Article 179(7)
  • Constitution of Kenya, 2012Article 232
  • Constitution of Kenya, 2012Article 236
  • County Governments Act, 2012Section 45, Section 45(1), Section 45(1)(a), Section 60, Section 75, Part VII
  • Bomet County Coordination of Government Functions Act, 2014Section 14(1)
  • Employment Actnull

Cases cited (2)

  • David Ogega Kebiro -v- Kisii County Public Service Board & Another
    [2017] eKLR
  • Agnes Wanjiku & 10 others -v- The Chief Registrar of the Judiciary and Another
    [2017] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment and labour relations disputes (Employment and Labour Relations Court Act); claim framed under the County Governments Act, 2012 and Articles 232 and 236 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 (2)

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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, "Kilelson Mutai v Governor County Govt of Bomet & 2 others [2021] KEELRC 1277 (KLR)", Case Analysis (2021). Employment and Labour Relations Claim (Memorandum of Claim dated 19th September, 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1277/eng@2021-07-08

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