Karugutiang v County Assembly Service Board West Pokot County & 2 others (Petition E001 of 2022) [2023] KEELRC 38 (KLR)
The bottom line
#Kenya's Employment Court ruled a West Pokot County Assembly clerk was on a fixed-term contract, not permanent terms, and dismissed his removal challenge with costs.
What this practically means
#Executive summary
#Key legal issues
#Whether the petitioner held permanent and pensionable terms or a 3-year fixed term contract
The petitioner's appointment was on a 3-year fixed term contract; the purported conversion to permanent and pensionable terms was void for lack of County Assembly approval under section 13(1) of the County Government Act
The initial letter of July 4, 2018 conveyed appointment on a 3-year contract, which the petitioner acknowledged. Although the Board's minutes of October 2018 purported to confirm him on permanent and pensionable terms, altering the terms was a fundamental change with financial implications that required County Assembly approval under section 13(1) of the County Government Act. No such approval was proved, so the alleged change was unauthorized or void.
Whether the respondent was justified in the removal letter of January 4, 2022
Since the petitioner was on a fixed term contract that expired, the respondent was justified in notifying expiry, though the court frowned on the delay and short notice which created a reasonable expectation of continued employment
The contract expired on June 30, 2021 but the petitioner continued working until January 4, 2022. The court held the respondent was justified in notifying the expiry but criticized the six-month delay and very short handover notice, noting it created a reasonable expectation of continued employment, partly perhaps due to pending litigation elsewhere.
Characterisation of the dispute - constitutional petition or ordinary employment claim
The court deemed the matter an ordinary employment dispute that should have been commenced as an ordinary claim, and deprecated the trend of dressing ordinary disputes as constitutional petitions
Having reviewed the pleadings, evidence and submissions, the court found the real issue was the petitioner's terms of service and termination, resolvable within the existing statutory framework. The court expressed concern about the growing trend of advocates invoking the Constitution for ordinary disputes.
Legal principles established
#- Appointment of a county assembly clerk requires approval of the County Assembly under section 13(1) of the County Government Act; any change of the clerk's terms without such approval is unauthorized and void
- Employees on fixed term contracts have no guarantee of renewal unless the contract so states; renewal is at the employer's discretion
- Courts deprecate the practice of presenting ordinary employment disputes as constitutional petitions
Court orders
#- 1.The petition is found to be without merit in its entirety and is dismissed
- 2.Costs of the petition awarded to the respondents
- Jurisdiction invoked
- Article 23 of the Constitution (petition for breach of articles 10, 41, 47 and 236); Employment and Labour Relations Court jurisdiction over employment disputes
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Karugutiang v County Assembly Service Board West Pokot County & 2 others (Petition E001 of 2022) [2023] KEELRC 38 (KLR)", Case Analysis (2023). Petition dated January 11, 2022 (Kapenguria/ELRC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/38/eng@2023-01-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.