Marianne J. Kitany v Chief of Staff and Head of Public Service & 2 others [2021] KEELRC 1380 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Jurisdiction of the ELRC vis-à-vis the President's power under Article 132(2)(g)
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
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.
Legitimate expectation of a fixed 5-year term
Rejected; the Claimant's tenure was amenable to change and replacement, and unlike Pravin Bowry she was not competitively recruited
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.
Fairness of the termination procedure
Section 41 procedural requirements did not apply because the termination was occasioned by reorganisation of Government
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.
Terminal dues
The Claimant is entitled to the terminal dues computed by the Respondents upon clearance
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.
Legal principles established
#- 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
#- 1.The Respondents' preliminary objection is dismissed
- 2.The Claimant to clear with the 2nd Respondent within 14 days of the judgment
- 3.The Respondents to ensure payment of the sums calculated as the Claimant's dues within 14 days of her clearance
- 4.In default of payment, the Claimant at liberty to move Court to enforce the decision
- 5.Each party to bear their own costs of the suit
- Jurisdiction invoked
- Employment and Labour Relations Court Act, Section 12(1); Constitution Articles 132(2), 234(2) and (4) considered
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Itumbi v Public Service Commission & 3 others (Petition E101 of 2021) [2023] KEELRC 141 (KLR)[2023] KEELRC 141 (KLR)26 Jan 2023
Cite this brief
#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.