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ELRCPartially AllowedNot stated in the judgment (Petition filed 3/9/2019)· [2021] KEELRC 2247 (KLR)

Samwel Onyango Okelo & another v County Government of Kisumu & another [2021] KEELRC 2247 (KLR)

Employment and Labour Relations Court
28 January 2021
1,548 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled Kisumu County illegally removed two City Board members without notice or a hearing, quashed the termination letters, and ordered them back in office.

What this practically means

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Executive summary

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The two petitioners, appointed members of the Kisumu County City Board by letters dated 9/7/2018 following open advertisement and interviews, petitioned the Employment and Labour Relations Court after the County Government of Kisumu and the Governor terminated their appointments by letters dated 28/8/2019 without notice or hearing. They sought declarations that the termination was unconstitutional, compensation under Article 23, reinstatement, and alternatively payment of the allowances and benefits for the five-year term, plus costs. The respondents, through a replying affidavit sworn by the Acting County Secretary, denied an employer-employee relationship, asserting the petitioners were part-time board members receiving allowances under the Urban Areas and Cities Act, 2011, whose removal was necessitated by the Urban Areas and Cities (Amendment) Act, 2019 introducing degree and experience qualification criteria, and relied on an advisory opinion of the Attorney General stating that unqualified members cease to hold office by operation of law. The court held that the Amendment Act did not automatically end subsisting terms; a verification process involving the affected members was required before removal. Noting the absence of any show-cause or hearing, and applying the principle in Ridge v Baldwin that a decision reached without natural justice is void, the court found violations of Articles 27, 41 and 47. Interim conservatory orders issued on 11/12/2019 had kept the petitioners in office. The court quashed the termination letters, directed that the petitioners remain in office until their term expires or they are lawfully removed, and awarded costs against the respondents. Claims for damages and alternative monetary compensation were not granted.

Key legal issues

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01

Whether the termination of the petitioners' appointments violated Articles 27, 41 and 47 of the Constitution

Holding

Yes - the respondents terminated the appointments without notice or hearing, violating the rights to equality, fair labour practices and fair administrative action

Reasoning

The respondents relied on the Urban Areas and Cities (Amendment) Act, 2019 which imposed new qualification criteria, and on the Attorney General's advisory opinion that unqualified members cease to hold office by operation of law. The court held the Amendment Act did not automatically end subsisting terms; removal required an inclusive verification process. The respondents afforded the petitioners no notice, hearing or fair administrative procedure, breaching Articles 27, 41 and 47.

p. 2
02

The effect of a decision made in breach of natural justice

Holding

The decision removing the petitioners from the board is void, following Ridge v Baldwin

Reasoning

Counsel invoked and the court adopted the principle in Ridge v Baldwin that a decision reached without observance of natural justice is void. Since the petitioners' removal occurred without any hearing or show-cause process, the termination letters dated 28/8/2019 were a nullity and were quashed.

p. 2
03

Whether the respondents' reply established an employer-employee relationship

Holding

The respondents asserted no employer-employee relationship, the petitioners being part-time board members receiving allowances under the Urban Areas and Cities Act, 2011

Reasoning

The respondents deposed that the petitioners were appointed part-time under Section 13 of the Urban Areas and Cities Act, 2011 with County Assembly approval, and received allowances only. The court nonetheless found the removal process constitutionally infirm because fair labour practices and fair administrative action protections applied regardless.

p. 2

Legal principles established

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  • A decision made without adherence to the principles of natural justice is void
  • An amendment Act removing qualification criteria does not automatically terminate subsisting board members' terms; a verification process involving affected members is required before removal
  • An advisory opinion cannot nullify or displace constitutional guarantees of due process, fair labour practices and fair administrative action

Court orders

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  1. 1.The decision contained in the letters dated 28/8/2019 directed to the petitioners was quashed for violating Articles 27, 41 and 47 of the Constitution
  2. 2.The petitioners to remain in office as members of the Kisumu County City Board as appointed by letters dated 9th July 2018 until the full term expires and/or they are lawfully removed following due process
  3. 3.The respondents to pay the costs of the suit

Authorities

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Legislation

  • Constitution of KenyaArticles 1, 2, 21, 23, 27, 28, 41, 47, 48, 50, 159(2)(d); Chapter Six
  • Employment ActNot specified
  • Fair Administrative Action ActNot specified
  • Urban Areas and Cities Act, 2011Sections 13, 25
  • Urban Areas and Cities (Amendment) Act, 2019Sections 9, 13, 14
  • Civil Procedure ActSection 18
  • Civil Procedure RulesOrder 21 rule 1

Cases cited (1)

  • Ridge -vs- Baldwin
    (1963) All ER 66 at 81
Jurisdiction invoked
Articles 23, 27, 41 and 47 of the Constitution of Kenya, 2010 (employment and labour relations jurisdiction)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Samwel Onyango Okelo & another v County Government of Kisumu & another [2021] KEELRC 2247 (KLR)", Case Analysis (2021). Not stated in the judgment (Petition filed 3/9/2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/2247/eng@2021-01-28

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