Biwott v Uasin Gishu County Public Service Board (Cause E014 of 2022) [2023] KEELRC 1412 (KLR)
The bottom line
#A Kenyan court voided a county worker's dismissal because the dismissal letter contradicted the County Public Service Board's decision to reinstate him with only a warning.
What this practically means
#Executive summary
#Key legal issues
#Whether the termination was fair and procedurally lawful
The dismissal was unlawful and a nullity because it was effected without authority, contrary to the County Public Service Board's resolution that the Claimant be reinstated with a warning and forfeiture of withheld salary
Section 45(2) of the Employment Act requires valid reason and fair procedure, with the burden on the employer under section 43. Although the disciplinary committee found gross misconduct, the County Public Service Board — the body statutorily vested with disciplinary power under sections 59 and 76 of the County Government Act — resolved that the Claimant be reinstated with a warning and forfeiture of withheld salary. The author of the dismissal letter acted without authority by departing from that resolution, rendering the dismissal void.
Whether reinstatement is available despite the three-year limitation in s.12(3)(vii) of the ELRC Act
Reinstatement was properly granted because the three-year period is reckoned from the Public Service Commission's decision of 18th May 2021, not from the dismissal letter of 19th March 2020
Although the dismissal letter was dated 19th March 2020, more than three years before judgment, county public service employees must first exhaust an appeal to the Public Service Commission before accessing the court. The PSC's decision confirming dismissal was communicated on 18th May 2021, so the three-year period had not lapsed.
Legal principles established
#- The power of removal of county public service officers vests in the County Public Service Board, and the Secretary to the Board has no authority to implement any decision contrary to the Board's resolution
- A dismissal effected contrary to the resolution of the County Public Service Board is a nullity
- For employees of County Public Service Boards, the three-year reinstatement period is reckoned from the date of the Public Service Commission's decision on appeal, since such employees have no access to the ELRC until the appeal is determined
Court orders
#- 1.The letter of dismissal of the Claimant is declared null and void; the Respondent is directed to withdraw the letter
- 2.The Respondent is directed to issue a letter giving effect to the resolution of the County Public Service Board to issue a letter of warning to the Claimant with loss of withheld salary with effect from the date of the decision
- 3.The Respondent shall bear the Claimant's costs of the suit
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment and labour relations disputes (Employment and Labour Relations Court Act, s.12 invoked on reinstatement limitation)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Biwott v Uasin Gishu County Public Service Board (Cause E014 of 2022) [2023] KEELRC 1412 (KLR)", Case Analysis (2023). Not stated in judgment (Statement of Claim dated June 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1412/eng@2023-06-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.