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ELRCPartially Allowednot stated in the provided judgment· [2023] KEELRC 1751 (KLR)

Lekoomet v County Government of Samburu (Employment and Labour Relations Cause E027 of 2021) [2023] KEELRC 1751 (KLR)

Employment and Labour Relations Court
14 July 2023
3,066 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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A Kenyan county government fired a Chief Officer without a hearing and lost, paying over Kshs 2.1 million for unfair termination.

What this practically means

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Executive summary

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The claimant, a professional engineer engaged in March 2018 as Chief Officer for Water, Environment, Natural Resources and Energy in the County Government of Samburu (later transferred to Gender, Culture and Social Services), was removed from office by the Governor's letter of 23rd April 2021 on grounds of underperformance under Section 45(6)(c) of the County Government Act. He sued, alleging no valid reason, no hearing, and violations of Articles 27, 41, 47, 50 and 236 of the Constitution, and sought declarations, damages, notice pay, gratuity, leave and off-day dues, costs and interest. The respondent admitted the employment relationship but justified the termination on a County Executive Committee performance review, asserting a fair hearing before the County Public Service Board, and challenged the court's jurisdiction. The respondent closed its case without calling any witnesses. The court held that the claimant's evidence was therefore unrebutted and that he had discharged his burden under Section 47(5) of the Employment Act. The respondent failed to prove a valid reason or fair procedure; the termination was unfair under Section 45 and offended Article 236. Jurisdiction was upheld, the suit being founded on constitutional rights and not governed by Section 77 CGA. The discrimination claim on account of disability failed for want of evidence, as did the claims for gratuity and leave/off days. Judgment was entered declaring the dismissal unfair, unlawful and unconstitutional, with awards of one month's salary in lieu of notice, six months' gross salary as compensation, and salary for 26 days worked in April 2021, totalling Kshs 2,101,737.33, subject to statutory deductions, with costs and interest at court rates.

Key legal issues

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01

Whether the termination was unfair and unlawful

Holding

Yes - the termination was unfair within the meaning of Section 45 of the Employment Act; the respondent proved neither a valid reason nor fair procedure

Reasoning

The respondent closed its case without calling any witnesses, leaving the claimant's evidence unrebutted. The termination letter cited poor performance per a County Executive Committee review, but no evidence of the review, of any show-cause notice or hearing was adduced. The claimant discharged his burden under Section 47(5), and the removal offended Sections 41, 43 and 45 of the Employment Act and Article 236 of the Constitution.

p. 5
02

Whether the termination violated the claimant's constitutional rights

Holding

Yes as to fair labour practices, fair administrative action and due process under Article 236; no as to discrimination on account of disability

Reasoning

The unrebutted evidence showed dismissal without a hearing, establishing violation of fair labour practices, fair administrative action and due process. However, the termination letter cited only poor performance, and the claimant adduced no evidence that his physical disability motivated the removal, so the Article 27(4) discrimination claim failed.

p. 6
03

Whether the court has jurisdiction over the suit notwithstanding Section 77 of the County Government Act

Holding

Yes - the suit is founded on constitutional violations and is not governed by Section 77 CGA

Reasoning

The respondent contended the suit was incompetent and premature, relying on Section 77 CGA. The court agreed with the claimant that the suit, grounded on constitutional rights violations, fell within the court's jurisdiction, drawing support from the Court of Appeal's decision in Kisumu County Public Service Board v Samuel Okuro.

p. 5

Legal principles established

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  • Where a respondent fails to adduce evidence, its defence remains mere allegations and the claimant's unrebutted evidence discharges the burden of proof under Section 47(5) of the Employment Act
  • Removal of a public officer without due process of law offends Article 236 of the Constitution
  • An employer seeking dismissal for underperformance must prove both a valid reason and a fair procedure under Sections 43 and 45 of the Employment Act

Court orders

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  1. 1.Declaration that the termination of the claimant's employment was unfair, unlawful and unconstitutional
  2. 2.Award of one month's salary in lieu of notice (Kshs 267,170.00)
  3. 3.Award of six months' gross salary as compensation for unfair termination (Kshs 1,603,020.00) under Section 49(1) of the Employment Act
  4. 4.Award of salary for 26 days worked in April 2021 (Kshs 231,547.33)
  5. 5.Total award of Kshs 2,101,737.33 subject to statutory deductions
  6. 6.Costs of the suit to the claimant plus interest at court rate from the date of judgment
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Court Act; suit founded on constitutional violations (Articles 27, 41, 47, 50, 236) and the Employment Act, 2007 - court held Section 77 CGA limitation did not govern the suit

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Lekoomet v County Government of Samburu (Employment and Labour Relations Cause E027 of 2021) [2023] KEELRC 1751 (KLR)", Case Analysis (2023). not stated in the provided judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1751/eng@2023-07-14

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.