Muthomi v County Secretary, County Government of Meru & 2 others (Employment and Labour Relations Petition E003 of 2022) [2023] KEELRC 56 (KLR)
The bottom line
#The Employment Court in Nyeri dismissed a county official's petition because he couldn't prove a valid employment contract existed.
What this practically means
#Executive summary
#Key legal issues
#Whether the petition met the competency threshold
The petition met the threshold as the petitioner pleaded with reasonable precision the constitutional provisions allegedly infringed.
The respondents argued the petition lacked precision on the constitutional provisions infringed. The court, examining specific paragraphs of the petition, found the provisions and manner of infringement pleaded with a reasonable degree of precision, consistent with the Anarita Karimi Njeru standard, and thus the petition was competent.
Whether the petitioner became County Solicitor on January 29, 2021
No valid contract as County Solicitor was formed; the petitioner remained Chief Legal Advisor until the contract lapsed on August 31, 2022.
The offer letter required acceptance by signature within 14 days, but the petitioner only signed on September 1, 2021, about 7 months late. No evidence supported the alleged retrieval of the letter for correction, the alleged assumption of the new role, payroll inclusion, resignation or handing-over records. The evidentiary burden of proving the new contract was not discharged.
Whether the letter dated November 10, 2022 violated the petitioner's fundamental rights
No violation of rights was proved; the letter was factual notification that the contract had lapsed.
Since no valid contract with the 2nd respondent was formed, the 1st respondent, as Head of County Public Service, was properly notifying the petitioner that his contract had lapsed. The letter did not terminate employment as it had already lapsed. No hearing was required for a purely factual notification, and no evidence of discrimination, torture or unfair administrative action was adduced.
Whether the petitioner was entitled to the reliefs sought
All reliefs were refused and the petition was dismissed with costs.
Having found no valid contract and no violation of constitutional rights, the court held the petitioner was not entitled to the declaratory, judicial review, injunctive, reinstatement or damages reliefs claimed.
Legal principles established
#- A party seeking redress on a constitutional matter must set out with a reasonable degree of precision the provisions said to be infringed and the manner of infringement.
- An offer of employment requiring acceptance within a fixed period lapses if acceptance is not made within that period, and prolonged stay in office cannot validate a contract that never existed.
- A party alleging that he left one position and took up another bears the evidentiary burden of proving that transition, e.g. by resignation letters, handing-over records or payslips.
- Public funds paid in error or by mistake are recoverable from the payee or by surcharge against the person who paid.
Court orders
#- 1.The petition was dismissed with costs.
- 2.Judgment dated, signed and delivered at Nyeri on 20th January 2023, delivered online pursuant to the Covid-19 court operations directions and with waiver of Rule 28(3) of the ELRC Procedure Rules.
- Jurisdiction invoked
- Constitutional petition under Articles 25(c), 28, 31, 41, 47, 48, 50, 10, 73, 232 and 236 of the Constitution of Kenya, 2010 (employment and labour relations jurisdiction)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Muthomi v County Secretary, County Government of Meru & 2 others (Employment and Labour Relations Petition E003 of 2022) [2023] KEELRC 56 (KLR)", Case Analysis (2023). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/56/eng@2023-01-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.