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ELRCPartially AllowedNot stated in the judgment· [2021] KEELRC 1380 (KLR)

Marianne J. Kitany v Chief of Staff and Head of Public Service & 2 others [2021] KEELRC 1380 (KLR)

Employment and Labour Relations Court
2 June 2021
4,991 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~20 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that jobs the President personally assigns carry no guaranteed term, though unpaid terminal dues must still be paid promptly.

What this practically means

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Executive summary

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The Claimant, Marianne J Kitany, sued the Chief of Staff and Head of Public Service, the Public Service Commission and the Attorney General, contending that her 2013 appointment as Chief of Staff in the Office of the Deputy President under the Executive Office of the President was for a fixed five-year term, and that her termination on 24th December 2015, effective 25th November 2015, on grounds of reorganisation of government was unlawful, unprocedural and in breach of legitimate expectation. She sought salaries for the remainder of her contract, gratuity, damages for unlawful termination, leave dues, interest and costs. The Respondents filed a preliminary objection asserting the Court lacked jurisdiction to question the President's mandate under Article 132(2)(g), and contended the appointment was at the President's pleasure. The Court dismissed the preliminary objection, holding that the President was not a party to the suit and that the ELRC may deal with constitutional issues arising before it. On the merits, the Court held that appointments personally made by the President carry no guarantee of serving a full term, distinguished the Pravin Bowry decision because the Claimant was not competitively recruited, and rejected the legitimate expectation claim. Section 41 procedural protections did not apply as the termination flowed from reorganisation of government, and discrimination was neither pleaded nor proved. However, the Respondents' admission that terminal dues remained unpaid led to orders that the Claimant clear with the Public Service Commission within 14 days and be paid her computed dues within 14 days of clearance, with liberty to enforce. Each party was ordered to bear its own costs.

Key legal issues

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01

Jurisdiction of the ELRC vis-à-vis the President's power under Article 132(2)(g)

Holding

The preliminary objection fails because the President is not a party to the suit; the parties sued are the Head of the Civil Service, the PSC and the Attorney General

Reasoning

The Respondents argued the Court lacked jurisdiction to question the President's constitutional mandate under Article 132(2)(g) and that no employer-employee dispute existed under Section 12(1). The Court held it can deal with constitutional issues arising in suits before it, noted the President enjoys only qualified immunity, and found the objection fatal because the President himself was not named as a party.

p. 4
02

Legitimate expectation of a fixed 5-year term

Holding

Rejected; the Claimant's tenure was amenable to change and replacement, and unlike Pravin Bowry she was not competitively recruited

Reasoning

The Court accepted the Claimant was appointed to serve under the Executive Office of the President but held that appointments personally made by the President carry no guarantee of serving the full stated term. Latitude must be given to the President to appoint and remove personal staff. Competitive recruitment, as in Bowry, could have supported a legitimate expectation, but the Claimant was never interviewed.

p. 4
03

Fairness of the termination procedure

Holding

Section 41 procedural requirements did not apply because the termination was occasioned by reorganisation of Government

Reasoning

Although the Claimant argued the termination contravened Sections 41, 43, 44 and 45 of the Employment Act, the Court found the removal arose from reorganisation of Government and did not require a disciplinary hearing under Section 41. Absent pleaded and proven discrimination or Section 41 factors, no compensation for unlawful termination could issue.

p. 4
04

Terminal dues

Holding

The Claimant is entitled to the terminal dues computed by the Respondents upon clearance

Reasoning

The Respondents' witness admitted the Claimant had not been paid her dues despite a voucher having been prepared. The Court directed the Claimant to clear with the 2nd Respondent within 14 days and the Respondents to pay within 14 days of clearance, with liberty to enforce in default.

p. 5

Legal principles established

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  • The ELRC is clothed with jurisdiction to deal with constitutional issues arising in a suit before it, provided it does not exercise a mandate reserved for the High Court
  • The President of Kenya is not absolutely immune from civil suits while in office, but enjoys qualified immunity
  • Appointments personally made by the President carry no guarantee of tenure for the full term specified and are amenable to replacement

Court orders

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  1. 1.The Respondents' preliminary objection is dismissed
  2. 2.The Claimant to clear with the 2nd Respondent within 14 days of the judgment
  3. 3.The Respondents to ensure payment of the sums calculated as the Claimant's dues within 14 days of her clearance
  4. 4.In default of payment, the Claimant at liberty to move Court to enforce the decision
  5. 5.Each party to bear their own costs of the suit

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 132(2)(g)
  • Constitution of Kenya, 2010Article 234(2) and (4)
  • Constitution of Kenya, 2010Article 236
  • Constitution of Kenya, 2010Article 260
  • Constitution of Kenya, 2010Article 27(4)
  • Constitution of Kenya, 2010Articles 28 and 29(e)
  • Employment ActSections 5(3), 12(1) [of the ELRC Act as cited], 41, 43, 44(3) and (4), 45, 49

Cases cited (22)

  • Kenya National Chamber of Commerce & Industry-Machakos Branch & Another v Music Copyright Society of Kenya (MCSK) & 3 Others
    [2019] eKLR
  • Waithira Kimondo & Another v Vigillant Auctioneers & 2 Others
    [2019] eKLR
  • Lillian W. Mbogo-Omollo v Cabinet Secretary Ministry of Public Service and Gender & Another
    [2020] eKLR
  • Justus Mutahi Ihaji v Kenya Airways Limited
    [2018] eKLR
  • Anthony Mkala Chitavi v Malindi Water & Sewerage Company Ltd
    [2013] eKLR
  • Narok County Government & Another v Richard Bwogo Birir & Another
    Civil Appeal No. 74 of 2014, [2015] eKLR
  • Jane Kiongo & 15 Others v Laikipia University & 6 Others
    [2019] eKLR
  • National Director of Public Prosecutions v Phillips and Others
    [2002] (4) SA 60 (W)
  • Communications Commission of Kenya & 5 Others v Royal Media Services Limited & 5 Others
    [2014] eKLR
  • Pravin Bowry v Ethics & Anti-Corruption Commission
    [2013] eKLR
  • County Government of Garissa & Another v Idriss Aden Mukhtar & 2 Others
    [2020] eKLR
  • Lemita Ole Lemein v Attorney General & 2 Others
    [2020] eKLR
  • Petrojessica Enterprises Ltd & Another v Leventis Technical Co. Ltd
    [1992] 5 NWLR, (Pt. 244) 675
  • Republic v Karisa Chengo & Another
    [2017] eKLR
  • John Harun Mwau v Attorney General
    [2015] eKLR
  • Tom Luusa Munyasya & Another v Governor, Makueni County & Another
    [2014] eKLR
  • County Government of Nyeri & Another v Cecilia Wangechi Ndungu
    [2015] eKLR
  • Mwenda Maluki Mwinzi v Cabinet Secretary, Ministry of Foreign Affairs & 2 Others
    [2019] eKLR
  • Miguna Miguna v Permanent Secretary, Office of The Prime Minister & Another
    [2011] eKLR
  • National Bank of Kenya Limited v Hamida Bana & 103 Others
    Civil Appeal No. 72 of 2017, [2017] eKLR
  • Justice Kalpana H. Rawal v The Judicial Service Commission & 3 Others
    Civil Appeal No. 1 of 2016, [2016] eKLR
  • Richard Erskine Leakey & 2 Others v Samson Kipkoech Chemai
    [2019] eKLR
Jurisdiction invoked
Employment and Labour Relations Court Act, Section 12(1); Constitution Articles 132(2), 234(2) and (4) considered

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Marianne J. Kitany v Chief of Staff and Head of Public Service & 2 others [2021] KEELRC 1380 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1380/eng@2021-06-02

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