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ELRCPartially AllowedPetition No. 23 of 2020

John Muneeni Makau v Charity Kaluki Ngilu, Governor Kitui Government & another [2021] KEELRC 2353 (KLR)

Employment and Labour Relations Court of Kenya at Nairobi
28 January 2021
7,506 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~30 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled that even a county minister cannot be fired without a fair hearing, awarding the ex-CECM about Ksh.1 million in compensation.

What this practically means

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Executive summary

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The petitioner, formerly County Executive Committee Member for Environment and Natural Resources in Kitui County, challenged his summary dismissal on 7th February 2020, one day after being required to explain an unauthorised trip to Taita Taveta County that ended in a fatal road accident. He sought declarations that the termination violated articles 1, 2, 10, 21, 27, 28, 41, 47, 50 and 232 of the Constitution, damages of over Ksh.23 million, reinstatement, and payment of salaries, allowances and gratuity for the remainder of the Governor's term. The respondents justified the dismissal under sections 31 and 40 of the County Government Act and sections 41, 43 and 44 of the Employment Act, citing underperformance, misconduct including an artisanal mining complaint, and the unauthorised trip. The court held that the Governor's power under section 31(a) is discretionary but must be exercised reasonably and not arbitrarily; dismissing the petitioner before he replied to the memo was arbitrary and without due process. Reliance on section 40(1) was of no consequence absent a County Assembly resolution, and there was no compliance with the mandatory hearing requirements of sections 41 and 43 of the Employment Act, rendering the termination unfair. However, remedies were moderated by the petitioner's conduct: three months' salary as compensation (Ksh.787,500), one month's notice pay (Ksh.262,500), and tabulation of leave days on basic salary. Reinstatement, future-tied allowances, medical cover, gratuity and constitutional damages were refused. Each party was ordered to bear its own costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether there are constitutional and legal rights violations
  2. 2.Whether the remedies sought should issue
  3. 3.Who should pay costs

Key legal issues

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01

Whether the dismissal of a CECM under section 31(a) of the County Government Act without hearing violated the Constitution

Holding

Yes - the dismissal one day after the memo, before any response, was arbitrary, unfair and without due process, violating articles 10, 41, 47, 232 and 259

Reasoning

The County Secretary's memo of 6th February 2020 required an explanation but set no timeline; the petitioner was released from duty the next day. The power under section 31(a), though discretionary, must be exercised reasonably and not arbitrarily per Court of Appeal authority. No County Assembly resolution supported reliance on section 40(1), making its application of no consequence.

p. 9
02

Whether the Employment Act procedures were complied with in the summary dismissal

Holding

No - no evidence of compliance with sections 35, 41 and 43; the termination was unfair under section 45 and remedies under section 49 available

Reasoning

Section 44 summary dismissal is subject to section 41(2) notice and hearing before a fellow employee; no such evidence existed and no exceptional circumstances were demonstrated. Section 43 requires valid reasons plus due process. The total failure to comply with the Act heavily impinged on the petitioner's constitutional protections.

p. 9
03

What remedies flow from the unfair termination

Holding

Three months' salary as compensation (Ksh.787,500), one month's notice pay (Ksh.262,500), and tabulation of leave days, taking into account the petitioner's conduct under section 45(5)(e)

Reasoning

Considering the petitioner's conduct, including the unauthorised trip and the accident, and applying section 45(5)(e) read with section 49, three months' salary was appropriate. Constitutional damages were refused as duplicative. Future-tied allowances and gratuity failed for want of justification; leave pay to be tabulated on basic salary.

p. 9

Legal principles established

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  • A Governor's power under section 31(a) of the County Government Act to dismiss a CECM must be exercised reasonably, not arbitrarily, and due process requiring a fair opportunity to be heard is imperative before dismissal
  • Section 41 of the Employment Act is mandatory; summary dismissal under section 44 is subject to notice and hearing under section 41(2), and failure to comply renders the termination unfair under section 45

Court orders

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  1. 1.Compensation awarded at ksh.787,500
  2. 2.Notice pay at ksh.262,500
  3. 3.Leave days shall be tabulated at the shop floor for the period ending 7th February, 2020

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Article 22 and 23 of the Constitution of Kenya 2010; Section 12 of the Employment and Labour Relations Court Act

Relief refused

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Declaration that termination was illegal, null and void with general damages for constitutional violations

The compensation awarded under section 49 was found sufficient redress

p. 9

Reinstatement as CECM

Futuristic claims tied to serving until 2022 without offering services; no reinstatement pleaded or claimed

p. 9

Family medical cover, monthly standing allowance, credit card allowance and field allowances for the remainder of the term

These were tied to an expectation to work until 2022 and ceased upon release from duty

p. 9

Gratuity of Ksh.2,929,093.13

No basis in contract, agreement or employer policy; no submissions justifying the claim

p. 9

Costs of the petition

Petition only partly successful; section 12(4) of the ELRC Act applied

p. 10

Costs

Each party shall bear own costs

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Accordingly, judgement is hereby entered for the petitioner against the respondents in the following terms; (a) Compensation awarded at ksh.787,500; (b) Notice pay at ksh.262,500; and (c) Leave days shall be tabulated at the shop floor for the period ending 7th February, 2020.
p. 10Final orders/disposition
To act as done herein was arbitrary, unfair and without due process. Despite the existence of various matters facing the petitioner, due process was imperative.
p. 9Due process in CECM dismissal
Section 41 of the Employment Act, 2007 is couched in mandatory terms. An employee must be given a hearing before termination of employment where there is alleged poor performance, incompetence or incapacity or any misconduct.
p. 9Mandatory hearing before termination
The application of section 40(1) of the Act is of no consequence.
p. 9Section 40(1) requires County Assembly resolution
On the issue of costs, as the petition partly successful; section 12(4) of the Employment and Labour Relations Court Act, 2011 put into account, each party shall bear own costs.
p. 10Costs

Issues in the judgment

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minor

Judgment cites 'section 41 and 43 of the Employment and Labour Relations Act' which do not exist in that Act; the judgment itself footnotes the error

minor

Quoted statutory text of section 31 of the County Government Act is garbled in the judgment, with fragments displaced ('ave such powers...', '(d) shall h')

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, "John Muneeni Makau v Charity Kaluki Ngilu, Governor Kitui Government & another [2021] KEELRC 2353 (KLR)", Case Analysis (2021). Petition No. 23 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/2353/eng@2021-01-28

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