Kamaria v County Government of Embu & 2 others (Cause 279 of 2016) [2023] KEELRC 1518 (KLR)
The bottom line
#An Embu County employee whose salary was stopped by the Governor's office won ten months' pay because only the County Public Service Board can discipline county staff.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction - whether section 77 CGA ousts the court's jurisdiction
The court has jurisdiction because the decision to stop salary and reshuffle was made by the Governor, not the County Public Service Board, so no appeal lay to the PSC under section 77 CGA.
Section 77 CGA expressly caters for appeals from decisions of the County Public Service Board. Since the reshuffle letter and stoppage of salary emanated from the Governor, the claimant could not appeal to the PSC. Following Kisumu County Public Service Board v Samuel Okuro, the Governor cannot discipline county public officers; doing so usurps the County Board's role, rendering such decisions ultra vires and quashable by the court.
Whether the claimant absconded duty from September 20, 2016
The respondents failed to prove absconding; they adduced no evidence at the hearing and admitted the employment was never terminated.
The respondents filed a defence but adduced no evidence. The replying affidavit admitted the redeployment of another person did not amount to termination and that failure to redeploy the claimant meant he retained his position. The burden of proving absconding lay on the respondents under sections 107-109 of the Evidence Act and was not discharged.
Entitlement to unpaid salary
The claimant is entitled to salary from November 2016 to August 2017, being ten months' gross pay of Kshs. 1,705,430.00 less statutory deductions.
Since the employment contract was never terminated and the stoppage of salary was not justified, the claimant was entitled to his salary. However, his contract was tied to the Governor's term; taking judicial notice that governors' first term lapsed in August 2017, the award is limited to ten months, and claims beyond August 2017 and other reliefs were overtaken by events.
Legal principles established
#- A Governor has no legal mandate to take disciplinary action against county public officers; such ultra vires decisions are quashable by the ELRC
- Section 77 of the County Government Act provides for appeals only from decisions of the County Public Service Board, not from Governor's decisions
Court orders
#- 1.Award of Ten (10) months gross pay equaling Kshs. 1,705,430.00 less statutory deductions
- 2.Judgment entered against the respondents jointly and severally
- 3.Costs of the suit to the claimant plus interest at court rates
- Jurisdiction invoked
- Unlimited original jurisdiction of the Employment and Labour Relations Court over employment and labour relations disputes; jurisdiction objection under section 77 of the County Government Act rejected
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kamaria v County Government of Embu & 2 others (Cause 279 of 2016) [2023] KEELRC 1518 (KLR)", Case Analysis (2023). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1518/eng@2023-06-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.