Patrick Mwanza Lukoko v Public Service Commission [2021] KEELRC 2254 (KLR)
The bottom line
#Kenya's Employment Court ruled a seconded public officer stays a Public Service Commission employee, and his dismissal was legally incomplete.
What this practically means
#Executive summary
#Key legal issues
#Identity of the employer at the material time
The Public Service Commission remained the legal employer while the Claimant was on secondment to the County Government of Narok; the County Public Service Board was only the putative employer.
Section 138 of the County Governments Act deems officers appointed by the Commission and serving in a county to be on secondment from the national government, and under section 138(5) secondment ceases only upon transfer or release. The Director of Surveys, acting as the Commission's agent, revoked the secondment on 2 May 2015, but the County Government neither consented to nor released the Claimant, and the Commission only released all seconded staff with effect from 1 July 2016 by a note of 17 May 2016.
Whether the suspension was in line with due process
The Claimant failed to prove the interdiction breached the applicable Regulations or the Fair Administrative Action Act.
The Commission Regulations envisage interdiction and suspension of public officers. Although the Claimant relied on PSC Guidelines limiting suspension to three months, he did not properly develop or advance the assertion that his indefinite suspension from 15 April 2016 breached the Regulations, so the challenge failed.
Whether there was constructive dismissal
No constructive dismissal; the doctrine presupposes resignation by the employee.
Constructive dismissal arises where an employee resigns because of a fundamental breach of contract going to the root of the contract, as explained in Western Excavating (ECC) Ltd v Sharp. The Claimant was in fact dismissed rather than resigning, so the doctrine could not apply to his case.
Lawfulness of the dismissal process
The dismissal process was not legally complete because of missteps and failures by both the Commission and the County Government, and the Claimant remains technically an employee of the Commission.
The County Government did not itself dismiss the Claimant but only recommended dismissal to the Commission, while the Commission sought to avoid legal responsibility, asserting that the County Government had authority to dismiss after release of seconded staff. The Court found a legal quagmire: the Commission knew the secondment had been revoked and should not have allowed the disciplinary process to proceed; it was also lacklustre in responding to the Claimant's grievances. The County Government was a necessary party though not joined.
Legal principles established
#- Under section 138 of the County Governments Act, a public officer seconded to a county government remains employed by the Public Service Commission during secondment, and secondment ceases only upon transfer or release under section 138(5).
- Constructive dismissal requires the employee to resign in response to a fundamental breach of contract going to the root of the contract; it cannot arise where the employee was dismissed.
Court orders
#- 1.Declares that the Claimant is still technically an employee of the Public Service Commission.
- 2.The Public Service Commission is ordered to address and resolve the employment status of the Claimant within 45 days.
- 3.The Claimant is deemed to have been on interdiction on half salary from 15 April 2016 until the Public Service Commission resolves his case.
- 4.No order on costs.
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment and labour relations disputes (Article 162(2) Constitution); dispute determined on record and written submissions by consent
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Patrick Mwanza Lukoko v Public Service Commission [2021] KEELRC 2254 (KLR)", Case Analysis (2021). ELRC Cause (Kisumu) - not stated in full in the judgment (Claimant moved the Court on 29 May 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/2254/eng@2021-01-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.