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ELRCDismissedCause No E839 of 2021· [2022] KEELRC 1579 (KLR)

Muthengi v Chairperson, Kitui Public Service Board & 4 others; County Assembly of Kitui (Interested Party) (Cause E839 of 2021) [2022] KEELRC 1579 (KLR)

Employment and Labour Relations Court
26 May 2022
MNMATHEWS N. NDUMA
2,298 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Employment Court refused to shield Kitui's Public Service Board Secretary from discipline, holding he must first face the lawful disciplinary process.

What this practically means

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Executive summary

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This is a ruling of the Employment and Labour Relations Court at Nairobi (Mathews N. Nduma, J) delivered on 26th May 2022 on two applications dated 8th October 2021 and 19th October 2021 by the Secretary and Accounting Officer of the Kitui County Public Service Board. He sought conservatory orders restraining the Respondents from denying him access to his office, suspending, interdicting or subjecting him to disciplinary action, staying the appointment of the 5th Respondent as Acting Accounting Officer, staying deployment and hand-over letters, compelling removal of office locks, and, by the second application, joining Governor Hon. Charity Kaluki Ngilu as an interested party and contemnor and staying her letters recalling and interdicting him. The Respondents, through the Board Chairperson's replying affidavit, alleged misconduct including unilateral staff recruitment, insubordination, leaking interview tools, and non-cooperation, leading to a show-cause letter, referral to the Governor under Section 58(5) of the County Governments Act, and his interdiction. The court framed a single issue: whether the Applicant met the conservatory-orders test in Gatirau Peter Munya v Dickson Mwenda Kithinji. It found the Applicant's affidavit omitted material facts, that the disciplinary process under Section 58(5) had lawfully commenced, and that conservatory orders would not serve public interest or orderly governance. Both applications were dismissed with costs in the cause.

Key legal issues

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01

Whether conservatory orders should be issued protecting the Applicant's position as Secretary/Accounting Officer pending the disciplinary process

Holding

The applications lacked merit and were dismissed; the Applicant failed the Munya test and full disclosure, and the disciplinary process under Section 58(5) of the County Governments Act should be allowed to run

Reasoning

The claim sought to pre-empt a disciplinary process commenced under Section 58(5) of the County Governments Act. The supporting affidavit omitted material facts about the dispute's history, including allegations of misconduct. Granting conservatory orders would not serve public interest or the orderly governance of the County Public Service Board. The Applicant must go through the lawful disciplinary process contemplated by the Respondents.

p. 5
02

The process for removal of the Secretary of a County Public Service Board

Holding

The Secretary is appointed by the Governor under Section 58(1)(c) of the County Governments Act; removal of Board members is governed by Section 58(5), and the removal process of the Secretary may be commenced by the Board through that process

Reasoning

Section 58(5) provides that Board members may only be removed on grounds set out for removal of members of Constitutional Commissions under Article 252(1) of the Constitution and by a vote of not less than seventy-five percent of all members of the County Assembly. The Secretary is appointed by the Governor with County Assembly approval, so the Board may commence the removal process under Section 58(5), which the Respondents had done before it was injuncted.

p. 5

Legal principles established

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  • Conservatory orders bear a public-law connotation and should be granted on the inherent merit of a case, bearing in mind public interest, constitutional values and proportionate magnitudes
  • An applicant for conservatory orders must make full and material disclosure of the history of the dispute; the disciplinary process contemplated under the County Governments Act must be allowed to proceed

Court orders

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  1. 1.The applications dated 8th October, 2021 and 19th October, 2021 are dismissed
  2. 2.Costs in the cause

Authorities

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Legislation

  • County Governments ActSection 58(5)
  • County Governments ActSection 58(1)(c)
  • Constitution of KenyaArticle 252(1)
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure RulesOrder 21 rule 1
  • Civil Procedure ActSection 18

Cases cited (1)

  • Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others
    [2014] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment dispute; interim relief governed by Gatirau Peter Munya v Dickson Mwenda Kithinji test

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, "Muthengi v Chairperson, Kitui Public Service Board & 4 others; County Assembly of Kitui (Interested Party) (Cause E839 of 2021) [2022] KEELRC 1579 (KLR)", Case Analysis (2022). Cause No E839 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1579/eng@2022-05-26

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