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ELRCPartially AllowedPetition No E007 of 2021· [2022] KEELRC 166 (KLR)

Joseph Kareko Gikonyo v County Government of Lamu & 2 others [2022] KEELRC 166 (KLR)

Employment and Labour Relations Court
4 April 2022
BMB. O. M. Manani
5,825 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~23 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled that even probationary employees must be given reasons and a hearing before termination, awarding a Lamu Chief Officer over Ksh. 1.4 million.

What this practically means

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Executive summary

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This ELRC petition concerned the termination of the Petitioner's two-year fixed-term contract as Chief Officer, Water Services, Lamu County, effected on 19th November 2021, about two months into engagement. The Petitioner contended the termination violated his constitutional rights, was effected by an organ lacking authority, and that the probation clause had been unilaterally inserted into his appointment letter. The Respondents maintained the termination occurred during probation, required neither reasons nor a hearing, and was alternatively justified under the at-pleasure doctrine. The court framed four issues: particularity of the constitutional pleas; the Governor's power to terminate; the law on terminating probationary contracts; and the applicability of the at-will doctrine. It held the Petition met the Anarita Karimi Njeru standard. On authority, it found that neither the Governor, the CEC nor the County Secretary could lawfully remove a Chief Officer; that power vests in the County Public Service Board. The court held that section 42(1) of the Employment Act, insofar as it denies probationary employees the section 41 protections of reasons and a hearing, is invalidated by section 7 of the sixth schedule to the Constitution as inconsistent with articles 27, 41, 47, 50 and 236, following Monica Munira Kibuchi. It also held the at-will doctrine is redundant in Kenya. The termination was declared null and void and quashed. Reinstatement, prohibition, balance-of-term damages and gratuity were refused. The Petitioner received six months' salary as compensation (Ksh. 803,220/=), Ksh. 600,000/= constitutional damages, costs and interest.

Key legal issues

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01

Sufficiency of pleadings on constitutional violations

Holding

The Petition sets out the articles infringed and particulars, thus compliant with Anarita Karimi Njeru

Reasoning

The court applied the Anarita Karimi Njeru standard requiring reasonable precision in alleging constitutional breaches. The Petition identified the specific articles of the Constitution infringed and furnished particulars of the breaches, satisfying the threshold and defeating the Respondents' abuse-of-process objection.

p. 3
02

Power to remove a County Chief Officer

Holding

Neither the Governor, CEC nor County Secretary had authority; only the CPSB could initiate removal

Reasoning

Chief Officers are part of the county public service. Unlike section 31 CGA for CEC members, no provision empowers a Governor to remove Chief Officers. Appointment under section 45 CGA involves the CPSB and County Assembly, so removal power vests in the CPSB, not the Governor. The County Secretary cannot discharge CPSB functions.

p. 4
03

Constitutionality of section 42(1) Employment Act ouster of section 41 protections for probationary employees

Holding

Section 42(1), insofar as it denies probationary employees reasons and a hearing, is unconstitutional and must be read with the necessary exclusions

Reasoning

Section 42(1) sanctions differential treatment on the right to know grounds, be heard and enjoy fair administrative action, infringing articles 27, 41, 47, 50 and 236. Under section 7(1) of the sixth schedule to the Constitution, pre-2010 law must be construed to conform to the Constitution, so the ouster is invalid.

p. 5
04

Unilateral amendment of the appointment letter to insert a probation clause

Holding

The court found it unnecessary to determine this because the termination was unlawful regardless; but unilateral amendment by an employer is a nullity

Reasoning

Whether or not the probation clause existed, the Petitioner was entitled to reasons and a hearing. Section 10(5) of the Employment Act forbids unilateral amendment by the employer, and continued service under an altered contract does not extinguish the right to sue for breach.

p. 5
05

Applicability of the 'at will' doctrine

Holding

The doctrine is redundant in Kenya and even express powers to terminate at will must respect due process

Reasoning

Articles 236(b), 41, 47 and 27 of the Constitution render the doctrine inoperative. Even where a Governor has express power to remove a CEC member under section 31 CGA, due process must be observed, as the Court of Appeal held in the Garissa case.

p. 6

Legal principles established

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  • All employees, whether or not on probation, are entitled to know the reason for termination and to be heard in response
  • Only the County Public Service Board, not the Governor, could lawfully initiate removal of a County Chief Officer
  • The 'at will' doctrine is redundant under Kenya's constitutional and statutory employment law design
  • An employer cannot unilaterally amend a contract of service once concluded; amendments require consultation and written notification

Court orders

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  1. 1.Declaration that the decision to terminate the Petitioner's contract violated his constitutional rights to equal treatment, fair hearing, fair administrative action and fair labour practices
  2. 2.Declaration that the termination communicated by letter dated 19th November 2021 is null and void and quashed
  3. 3.Compensation for unfair termination equivalent to six months' gross salary totaling Ksh. 803,220/= subject to statutory deductions under section 49 of the Employment Act
  4. 4.Ksh. 600,000/= as compensation for the constitutional violations under section 12(3)(viii) of the ELRC Act
  5. 5.Costs of the Petition to the Petitioner
  6. 6.Interest on the sums awarded at court rates from the date of judgment till payment in full

Authorities

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Legislation

  • Constitution of Kenya 2010articles 24, 27, 28, 41, 47, 50, 235, 236
  • Constitution of Kenya 2010section 7(1), sixth schedule
  • County Governments Actsections 2, 5(2)(f), 31, 44, 45, 46(1), 49, 51, 58, 58A, 59
  • Employment Actsections 10(5), 41, 42(1), 49
  • Interpretation and General Provisions Actsection 51
  • Employment and Labour Relations Court Actsection 12(3)(viii)
  • ELRC Procedure RulesRule 28(3)

Cases cited (15)

  • Anarita Karimi Njeru v Republic
    [1979] eKLR
  • County Government of Garissa & another v Idriss Aden Mukhtar & 2 others
    [2020] eKLR
  • Kisumu County Public Service Board & another v Samuel Okuro & 7 others
    [2018] eKLR
  • Monica Munira Kibuchi & 6 others v Mount Kenya University; Attorney General (Interested Party)
    [2021] eKLR
  • Rustus Odhiambo Otieno v Style Industries Limited
    [2019] eKLR
  • Danish Jalang’o & another v Amicabre Travel Services Limited
    [2014] eKLR
  • Lawrence Musyimi Ngao v Liquid Telecom Kenya Ltd
    [2019] eKLR
  • Elizabeth Kwamboka Khaemba v Bog Cardinal Otunga High School Mosocho & 2 others
    [2014] eKLR
  • Kenya County Government Workers Union v Wajir County Government & another
    [2020] eKLR
  • Hogg vs. Dover College
    [1990] ICR 39
  • Alram/Alcan Extrusions vs. Yates & Others
    [1996] IRLR 327
  • James Ang’awa Atanda & 10 others v Judicial Service Commission
    [2017] eKLR
  • Alphonse Maghanga Mwachanya v Oeration 680 Limited
    [2013] eKLR
  • D K Njagi Marete v Teachers Service Commission
    [2020] eKLR
  • Standard Group Limited v Jenny Luesby
    [2018] eKLR
Jurisdiction invoked
Constitution of Kenya 2010 and section 12(3)(viii) of the Employment and Labour Relations Court Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (5)

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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, "Joseph Kareko Gikonyo v County Government of Lamu & 2 others [2022] KEELRC 166 (KLR)", Case Analysis (2022). Petition No E007 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/166/eng@2022-04-04

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