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ELRCDismissedEldoret ELRC Petition No E025 of 2022 (formerly Nairobi ELRC Petition No E0179 of 2022)· [2023] KEELRC 856 (KLR)

Lomari & 4 others v County Government of Turkana & 5 others; Attorney General (Interested Party) (Petition E025 of 2022) [2023] KEELRC 856 (KLR)

Employment and Labour Relations Court
13 April 2023
6,445 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~26 min to read original · ~4 min brief

The bottom line

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Five Turkana chief officers won on the law but lost the case because their petition didn't keep up with events.

What this practically means

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Executive summary

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Five County Chief Officers of Turkana County Government petitioned the Employment and Labour Relations Court at Eldoret after the Governor, following the August 2022 elections, restructured county ministries and caused them to be sent on one month's compulsory leave by a letter dated October 18, 2022. They sought declarations that the decision was unconstitutional, certiorari to quash it, declarations that they remained lawful Chief Officers, and compensation. The Respondents countered that the executive order abolished the positions, that contract renewals were irregular, and that the Petitioners ought first to have appealed to the Public Service Commission under section 77 of the County Governments Act. The court framed three issues: exhaustion, violation of rights, and entitlement to reliefs. On exhaustion it held that section 77 does not apply to Chief Officers because the County Public Service Board neither employs them nor exercises disciplinary control over them, and that the 90-day appeal mechanism is unsuited to urgent interlocutory relief. On the merits the court found that the Respondents acted without authority and punished the Petitioners for alleged wrongs of the previous administration without due process, violating Articles 41, 47 and 236. However, because the Petitioners' contracts were terminated during the pendency of the suit and the petition was never amended, the pleaded reliefs had been overtaken by events and the court declined to engage in an academic exercise. The petition as framed was dismissed with no orders as to costs, without prejudice to a fresh claim on the terminations.

Key legal issues

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01

Whether the doctrine of exhaustion barred the petition

Holding

The doctrine did not bar the petition because section 77 of the County Governments Act does not apply to Chief Officers, and the PSC could not grant the urgent interlocutory reliefs sought

Reasoning

The court examined section 45 of the County Governments Act and held that the County Public Service Board does not employ Chief Officers nor exercise disciplinary control over them; it only nominates candidates for gubernatorial appointment. Section 77, which permits appeals to the PSC within 90 days, is aimed at final determinations of the Board and is unsuitable for urgent interlocutory relief such as that sought here. Exceptions to exhaustion also apply where urgency and suitability demand.

p. 13
02

Whether the Respondents violated the Petitioners' constitutional rights by sending them on compulsory leave

Holding

Yes - the Respondents violated Articles 47, 236 and 41 rights, but the court declined to grant remedies because the petition had been overtaken by events

Reasoning

The Respondents acted without authority in sending the Petitioners on compulsory leave and punished them for alleged wrongs of the previous administration without due process or being asked to show cause. No legal, regulatory or policy provision permitting compulsory leave in the circumstances was demonstrated. However, because the contracts were subsequently terminated and the petition was never amended to address the termination, granting the pleaded reliefs would be academic.

p. 13
03

Whether the court could determine the subsequent termination addressed only in submissions

Holding

No - parties are bound by their pleadings; the petition confined to the compulsory leave decision could not address the later termination

Reasoning

The pleadings challenged the October 18, 2022 compulsory leave letters, while submissions addressed the November 17, 2022 termination letters. The Petitioners did not amend the petition to reflect the changed circumstances or seek remedies relevant thereto, so the court could only determine the prayers as set out in the petition.

p. 11

Legal principles established

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  • County Chief Officers are not employees of the County Public Service Board, which therefore does not exercise disciplinary control over them, so section 77 of the County Governments Act (appeals to the PSC) does not apply to decisions concerning them
  • Section 77 of the County Governments Act is not intended for urgent interlocutory reliefs, as the 90-day appeal window means the PSC cannot effectively handle matters requiring urgent relief
  • The Governor has no power to remove a County Chief Officer from office; he may only re-assign, and removal must follow due process under section 46 of the County Governments Act
  • Punishing an officer for wrongs of a previous administration without being asked to show cause violates the rights to fair hearing, due process and fair labour practices
  • Courts do not make orders in vain; reliefs overtaken by events will be refused as an academic exercise

Court orders

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  1. 1.The petition dated October 21, 2022 as currently framed is dismissed
  2. 2.No orders as to costs
  3. 3.The dismissal shall not be a bar to the Petitioners filing a claim in respect of the termination of their contracts

Authorities

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Legislation

  • Constitution of KenyaArticles 2(1), 2(4), 10, 22(3), 27, 28, 41, 47, 50, 159, 165, 232, 236
  • County Governments ActSections 31, 45, 46, 56, 59, 74, 75, 77
  • Employment ActSection 41
  • Fair Administrative Action ActSections 3(1), 9(4), 90
  • Inter-Governmental Relations ActSections 33, 34

Cases cited (14)

  • Mwangi Ngumo vs Kenya Institute of Management
    (2012) eKLR
  • David Baariu Mwirabua & 2 others v Governor, Meru County & another
    (2019) eKLR
  • Shem Okora Onywera v Kisii County Government & another
    (2018) eKLR
  • Rosemary Chinyei Parangiro vs Turkana County Government Service Board and others
    Eldoret ELRC Pet/E027/2022
  • Secretary, County Public Service Board & another v Hulbhai Gedi Abdille
    [2017] eKLR
  • William Odhiambo Ramogi & 3 others v Attorney General & 4 others; Muslims for Human Rights & 2 others (Interested Parties)
    Constitutional Petition No 159 of 2018 consolidated with Constitutional Petition No 201 of 2019 (2020) eKLR
  • R vs. Independent Electoral and Boundaries Commission (I.E.B.C) Ex Parte National Super Alliance (NASA) Kenya and 6 others
    [2017] eKLR
  • Speaker of National Assembly v Karume
    [1992] KLR 21; (1990-1994) EA 546
  • Geofirey Muthiga Kabiru & 2 others v Samuel Munga Henry & 1756 others
    [2015] eKLR
  • Kenya Ports Authority v William Odhiambo Ramogi & 8 others
    Mombasa Civil Appeal No 166 of 2018 [2019] eKLR
  • Fleur Investments Limited -vs- Commissioner of Domestic Taxes & another
    Civil Appeal 158 of 2017 [2018] eKLR
  • Night Rose Cosmetics (1972) Ltd v Nairobi County Government & 2 others
    [2018] eKLR
  • Republic v National Environment Management Authority Ex parte Sound Equipment Ltd
  • Mofiat Kamau and 9 Others vs Aelous (K) Ltd and 9 Others
Jurisdiction invoked
Articles 162(2), 165 and 22 of the Constitution; Employment and Labour Relations Court Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Lomari & 4 others v County Government of Turkana & 5 others; Attorney General (Interested Party) (Petition E025 of 2022) [2023] KEELRC 856 (KLR)", Case Analysis (2023). Eldoret ELRC Petition No E025 of 2022 (formerly Nairobi ELRC Petition No E0179 of 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/856/eng@2023-04-13

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