Sabana v County Government of Kakamega County & 2 others (Employment and Labour Relations Petition E012 of 2022) [2023] KEELRC 1649 (KLR)
The bottom line
#Kenya's Employment Court confirmed that county executive committee members' jobs end when the governor who appointed them leaves office—no compensation is owed.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction and constitutional avoidance
The ELRC has jurisdiction over the petition; constitutional avoidance does not apply because the petitioner pleaded constitutional violations and sought compensation under Articles 22 and 23 in addition to Employment Act claims
The court acknowledged divergent Court of Appeal opinions (Gabriel Mutava versus County Government of Garissa/Idris Aden Mukhtar) but upheld the recent decision in County Government of Garissa v Idris Aden Mukhtar, which upheld the ELRC's jurisdiction to grant Article 23 remedies in termination of persons appointed under Article 179. The petition raised both an unfair termination claim and constitutional rights claims, properly before the ELRC.
Proper party - 3rd Respondent Governor
The Governor is properly joined as holder of the office, not in personal capacity; no misjoinder, but the prayer declaring him unfit to hold public office is misplaced
The termination letter was issued by the Governor, who holds the 2nd Respondent's office and acted in an official capacity. The court found no misjoinder. However, the prayer for a declaration that he is unfit to hold public office is a matter for the impeachment process under Article 181 and section 33(1) of the County Governments Act, not this forum.
Whether the termination of the CECM was unfair
The termination was by operation of law under Article 179(7); the term of the CECM ran concurrently with the appointing Governor and ceased upon his exit, so the termination was not unfair
The 7th March 2022 extension of the petitioner's contract by the outgoing Governor was irregular - it was issued while a valid contract still had over four months to run and extended the term beyond that of the appointing Governor contrary to Article 179(7). The Cecilia Wangechi Ndungu and Idris Aden Mukhtar authorities on due process were distinguishable because in those cases the Governors who appointed the officers were still in office. No legitimate expectation could accrue to serve beyond the appointing Governor's term.
Alleged discrimination and violation of Articles 27, 41, 47 and 50
No violation: the employment ended by operation of law, so discrimination and unfair labour practice claims could not arise, and the Governor was entitled to choose his own CECMs
Since the term of employment ended by operation of law upon the appointing Governor's exit, with no accrued right or legitimate expectation to serve further, discrimination could not arise. Retention of some CECMs by the new Governor was lawful. Articles 41 (fair labour practices), 47 (fair administrative action) and 50 (fair hearing) were not violated because the employment terminated by operation of law.
Remedies
No constitutional compensation was merited; the pleaded Employment Act and contractual entitlements (certificate of service, notice, gratuity) were not grantable in a constitutional petition
The letter of termination provided one month's salary in lieu of notice, making it a normal termination. Claims for certificate of service, notice and gratuity were contractual rights negotiated between the parties falling under private law, and the court's constitutional jurisdiction was not invoked for that purpose. The compensation claim therefore failed.
Legal principles established
#- The term of office of a County Executive Committee Member appointed under Article 179(2)(b) is tied to the term of the appointing Governor; if the Governor ceases to hold office, the CECM ceases to hold office under Article 179(7)
- There is no legitimate expectation to hold a public office to the end of its term; a public office is not the property of the office-holder
- Parties are bound by their pleadings and submissions that depart from pleadings must be disregarded
Court orders
#- 1.The petition is dismissed in its entirety
- 2.Each party to bear own costs in the petition
- Jurisdiction invoked
- Article 162(2) of the Constitution read with Section 12 of the Employment and Labour Relations Court Act; reliefs under Articles 22 and 23 of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (3)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Matemba v County Government of Kakamega (Claim E025 of 2023) [2023] KEELRC 2207 (KLR)[2023] KEELRC 2207 (KLR)22 Sept 2023followed
- Wangia v County Government of Kakamega County (Employment and Labour Relations Claim 15 of 2023) [2023] KEELRC 2204 (KLR)[2023] KEELRC 2204 (KLR)22 Sept 2023followed
- Abdi v Governor, Kakamega County Government & 2 others; Maloba (Interested Party) (Employment and Labour Relations Petition 3 of 2023) [2023] KEELRC 1971 (KLR)[2023] KEELRC 1971 (KLR)27 Jul 2023followed
Cite this brief
#Cite this brief
Caselaw, "Sabana v County Government of Kakamega County & 2 others (Employment and Labour Relations Petition E012 of 2022) [2023] KEELRC 1649 (KLR)", Case Analysis (2023). ELRC Petition No. E012 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1649/eng@2023-07-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.