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ELRCOtherCause No 76 of 2017· [2022] KEELRC 1440 (KLR)

Yaa & another (Suing as Administrators of the Estate of Frederick Yaa Charo) v Kilifi County Government (Cause 76 of 2017) [2022] KEELRC 1440 (KLR)

Employment and Labour Relations Court
21 June 2022
BMB O M Manani
1,287 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that county governments, not just County Public Service Boards, are the true employers — and missing parties can be added, not fatal.

What this practically means

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Executive summary

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Fredrick Yaa Charo, a former employee of the defunct municipal council of Malindi, was absorbed into the County Government of Kilifi's workforce in December 2013 and suspended by letter dated March 30, 2015. He sued for unfair termination but died before prosecuting the claim; the claimants were granted leave to continue the suit as legal representatives of his estate. The respondent filed a Notice of Preliminary Objection dated April 20, 2022 arguing that it had no power to hire or fire the deceased because human resource management is the preserve of the County Public Service Board established under section 57 of the County Governments Act, and that the suit should therefore be struck out as incompetent. The court held that under article 235(1) of the Constitution county governments establish offices, appoint and discipline personnel, and that CPSBs merely execute these human resource mandates as agents of the county governments, which remain the actual employers and principals. A suit against only one of the two entities amounts to mere non-joinder of a necessary party, curable by amendment and not fatal to the suit. The court declined to follow the reasoning in Osman Abdullahi Sheikh v County Government of Garissa, holding that recruitment by a CPSB is an agency discharge for the county government. Invoking the principle that striking out pleadings is a draconian last resort, the court declined the preliminary objection, granted leave to amend the Statement of Claim to add the relevant County Public Service Board as a necessary party, directed service of the resultant summons, and ordered costs of the objection to be in the cause.

Key legal issues

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01

Proper employer and necessary parties in claims over county public service employment

Holding

The county government is the principal employer; the CPSB is a disclosed agent executing human resource functions on its behalf. Both are necessary parties, but omission of one is non-joinder curable by amendment.

Reasoning

Article 235(1) vests in county governments the power to establish offices, appoint and discipline personnel. Sections 56, 57 and 59 of the County Governments Act make the CPSB a distinct legal entity, but it only executes the county government's human resource mandate as agent. Since the county government ultimately shoulders liability, suits should ideally name both; omission is non-joinder curable under the court's discretion, and striking out pleadings is a draconian last resort.

p. 2
02

Whether the preliminary objection should succeed

Holding

Declined; the claimants were instead allowed to amend the Statement of Claim to add the County Public Service Board.

Reasoning

The court found the objection raised a curable pleading defect rather than a fatal one. Relying on Bruce Lule and Bayplan Credit, striking out is draconian and to be avoided where amendment can save the proceedings. The court also declined to follow the Osman Abdullahi reasoning that recruitment by the CPSB makes it the employer, viewing recruitment as agency discharge for the county government.

p. 3

Legal principles established

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  • County Public Service Boards act as agents of their respective county governments, which remain the actual employers and principals
  • Suing only the CPSB or only the county government is mere non-joinder curable by amendment, not a fatal defect
  • A suit relating to county human resource personnel directed against a CPSB without including the county government is legally hopeless

Court orders

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  1. 1.The preliminary objection dated April 20, 2022 is declined
  2. 2.The claimants are granted leave to amend the Statement of Claim to bring on board the relevant County Public Service Board as a necessary party
  3. 3.The claimants are directed to serve the resultant summons as appropriate
  4. 4.Costs of the objection to be in the cause

Authorities

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Legislation

  • Constitution of Kenya, 2010article 176
  • Constitution of Kenya, 2010article 235(1)
  • County Governments Actsection 56
  • County Governments Actsection 57
  • County Governments Actsection 59
  • ELRC Procedure RulesRule 28(3)

Cases cited (5)

  • William Kiprono Towett & 1597 others v Farmland Aviation Ltd & 2 Others
    [2016] eKLR
  • Tabitha Njambi Chigua and 12 others v County Government of Kiambu
    [2016] eKLR
  • Osman Abdullahi Sheikh v County Government of Garissa
    [2020] eKLR
  • Bruce Lule v Mulki A Issa
    [2021] eKLR
  • Bayplan Credit Limited v Gesa Building & Civil Engineering & 2 others
    [2015] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment claims; specific preliminary objection determined under article 235(1) of the Constitution as read with sections 56, 57 and 59 of the County Governments Act

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, "Yaa & another (Suing as Administrators of the Estate of Frederick Yaa Charo) v Kilifi County Government (Cause 76 of 2017) [2022] KEELRC 1440 (KLR)", Case Analysis (2022). Cause No 76 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1440/eng@2022-06-21

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