Lomari & 4 others v County Government of Turkana & 5 others; Attorney General (Interested Party) (Petition E025 of 2022) [2023] KEELRC 856 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the doctrine of exhaustion barred the petition
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
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.
Whether the Respondents violated the Petitioners' constitutional rights by sending them on compulsory leave
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
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.
Whether the court could determine the subsequent termination addressed only in submissions
No - parties are bound by their pleadings; the petition confined to the compulsory leave decision could not address the later termination
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.
Legal principles established
#- 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
#- 1.The petition dated October 21, 2022 as currently framed is dismissed
- 2.No orders as to costs
- 3.The dismissal shall not be a bar to the Petitioners filing a claim in respect of the termination of their contracts
- Jurisdiction invoked
- Articles 162(2), 165 and 22 of the Constitution; Employment and Labour Relations Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#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.