Nyagah v County Government of Embu & 2 others (Cause 44 of 2019) [2023] KEELRC 1444 (KLR)
The bottom line
#An Embu County employee unfairly fired by the Governor won Kshs.3.1 million because only the County Public Service Board can discipline county officers.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction / exhaustion of remedies under section 77 of the County Government Act
The court has jurisdiction because the Governor acted ultra vires in terminating the claimant without the County Public Service Board, so the termination decision is not appealable to the PSC
The respondents objected that the claimant should have appealed to the Public Service Commission under section 77(1) and (2) of the County Government Act. Relying on Kisumu County Public Service Board v Samuel Okuro, the court held that a Governor who terminates a county public officer's contract without involving the County Public Service Board usurps the Board's role and acts ultra vires; a decision taken ultra vires is not appealable to the PSC, leaving the ELRC seized of jurisdiction to quash the unlawful termination.
Validity of the reason for termination
The reason (absconding duty from 20th July 2018 to 16th October 2019) was not proved valid and fair
The termination letter alleged desertion of duty and drawing of salary in absentia. The claimant produced contemporaneous documents - a concept paper signed by the Governor, correspondence and memos - proving he was at work. The respondents closed their case without calling any witness, so their allegation was unrebutted, and they failed to discharge the burden under section 45(2)(a) and (b) of the Employment Act.
Fairness of procedure under section 41 of the Employment Act
Procedure was unfair; the claimant was not accorded an oral hearing before termination
Section 41 mandates the employer to explain the reasons for contemplated termination in the presence of another employee or union representative and to hear and consider representations. Although a show cause letter was issued and responded to, the claimant was not invited to any oral hearing before the County Public Service Board or a committee, and no certificate of service was issued, breaching the mandatory procedure.
Violation of fundamental rights (Articles 28, 41, 47 and 50)
The Governor's ultra vires action amounted to illegality and violation of the claimant's fundamental rights
Following the Kisumu County Public Service Board decision, failure to follow the disciplinary machinery under the County Government Act violated the claimant's fundamental rights. The court added that stopping salary without justification or prior hearing amounted to inhuman and degrading treatment and breached fair labour practices and fair administrative action under Articles 41 and 47.
Entitlement to salary for unserved contract term
Not payable; claimant entitled only to section 49 compensation because the contract had no stipulation for payment of the unserved term
The court took judicial notice that the claimant's fixed term contract was tied to the Governor's term, ending August 2022. However, the appointment letter did not provide for salary for the unserved term upon premature termination, and the burden lay on the employee. Applying Mwachanya and Munyao, the court instead awarded the maximum 12 months' gross pay compensation, one month's notice pay, unpaid salary and one year's gratuity.
Legal principles established
#- Where termination of employment is done by a person acting ultra vires (without legal mandate), the decision is not appealable to the Public Service Commission and the ELRC has jurisdiction to quash the unlawful termination
- A Governor lacks disciplinary power over a county public officer without the involvement of the County Public Service Board; a Governor's termination of such a contract is ultra vires
- Payment of salary for the remainder of a fixed term contract depends on the intention of the parties; absent clear stipulation, compensation is guided by the maximum 12 months' gross pay under section 49 of the Employment Act
- An employer who tenders no evidence to prove the reason for termination fails to establish a valid and fair reason under section 45 of the Employment Act
Court orders
#- 1.Declaration that the claimant's employment contract was terminated unfairly and unlawfully
- 2.1st respondent to pay one month salary in lieu of notice of Kshs.199,110.00
- 3.1st respondent to pay 12 months' gross salary compensation of Kshs.2,389,320.00
- 4.1st respondent to pay unpaid salary for October, November and 4 days of December 2019 of Kshs.424,768.00
- 5.1st respondent to pay gratuity of Kshs.127,110.00
- 6.Total award of Kshs.3,140,308.00 subject to statutory deductions
- 7.Claim against the 2nd respondent dismissed
- 8.Claim against the 3rd respondent dismissed
- 9.Claimant awarded costs of the suit plus interest at court rate
- Jurisdiction invoked
- Article 162(2) of the Constitution and Section 12 of the Employment Act (Employment and Labour Relations Court Act) conferring exclusive jurisdiction over employment and labour relations disputes
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nyagah v County Government of Embu & 2 others (Cause 44 of 2019) [2023] KEELRC 1444 (KLR)", Case Analysis (2023). Cause No 44 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1444/eng@2023-06-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.