Itumbi v Public Service Commission & 3 others (Petition E101 of 2021) [2023] KEELRC 141 (KLR)
The bottom line
#Kenya's Employment Court ruled a presidentially appointed official was unfairly terminated over redundancy paperwork, winning two months' salary but not constitutional damages.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the ELRC over the petition
The court has jurisdiction; the petitioner's appointment by the President does not oust it, and the Local Agreement did not expressly make the appointment one at pleasure.
The court derived jurisdiction from Article 162(2)(a) and section 12 of the ELRC Act. It held the ELRC can determine constitutional issues arising in employment disputes, and that presidential appointment per se does not deny jurisdiction. The Local Agreement was not explicit that the petitioner served at the appointing authority's pleasure, so the pleasure doctrine did not defeat jurisdiction.
Whether constitutional rights were violated
No constitutional violation established; the alleged breach of section 28 of the PSC Act was statutory, not constitutional, and the Anarita Karimi Njeru threshold was not met.
The petitioner relied solely on the claim that the 3rd Respondent was not the authorised officer under section 28 of the PSC Act. The court found section 28(1) uses 'an authorised officer' and no evidence showed the Cabinet Secretary lacked authority. Even if irregular, the flaw was statutory, not constitutional. Declarations were accordingly declined.
Petitioner's status and applicability of the Employment Act
The petitioner was neither a State Officer nor an ordinary public officer properly so called, but the parties made the Employment Act part of the Local Agreement, so it applied.
The petitioner held a supernumerary post created by the PSC at the President's instigation, analogous to State Officers. However, the 2017-revised Local Agreement incorporated the Employment Act in its termination clause, so the Act's provisions had to be complied with notwithstanding the special nature of the engagement.
Whether termination was unfair
Termination by redundancy was substantively justified but procedurally unfair for non-compliance with section 40 of the Employment Act.
The re-organisation of Government was a valid operational reason, but the Respondents complied with neither the redundancy procedure under section 40 nor the termination provisions of the Employment Act, defeating procedural fairness. Compensation of two months' salary under section 49(1)(c) was awarded, considering the length of service, absence of blame, and the handpicked nature of the appointment.
Legal principles established
#- The ELRC has jurisdiction to hear and determine constitutional issues arising in employment disputes before it.
- Where the parties make the Employment Act part of a local agreement, its provisions apply and must be complied with.
- Non-compliance with section 40 redundancy requirements renders termination unfair for want of procedural fairness.
Court orders
#- 1.Equivalent of two (2) months salary awarded against the 3rd Respondent
- 2.All other prayers disallowed
- 3.Each party to bear own costs
- Jurisdiction invoked
- Article 162(2)(a) of the Constitution read with section 12 of the Employment and Labour Relations Court Act, 2011
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Itumbi v Public Service Commission & 3 others (Petition E101 of 2021) [2023] KEELRC 141 (KLR)", Case Analysis (2023). ELRC Petition No. E101 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/141/eng@2023-01-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.