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ELRCPartially AllowedCause No. 3 of 2022 (filed 23rd December 2022)· [2023] KEELRC 1852 (KLR)

Loronyokwe v County Government of Samburu & 2 others (Cause E051 of 2022) [2023] KEELRC 1852 (KLR)

Employment and Labour Relations Court
28 July 2023
2,131 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ordered Samburu County to pay a dismissed employee over Kshs.4.3 million because he was fired without a fair hearing by an official who lacked the power to do so.

What this practically means

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Executive summary

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The claimant was employed by Samburu County Government as Government Spokesperson (CPSB 05) and in May 2018 appointed acting Secretary/Coordinator of Public Participation and Civic Education. On 28th October 2019, shortly after appearing in a County press release as Government Spokesperson, he was informed by telephone by the Governor's Political Advisor to collect his summary dismissal letter from the Chief of Staff. The letter alleged absconding of duties during the Kenya Devolution Support Programme assessment and participation in an unlawful media engagement, amounting to gross misconduct. Following a failed Ombudsman complaint and an earlier suit struck out for failure to first appeal to the Public Service Commission under section 77 of the County Government Act, and the PSC upholding the dismissal in 2021, the claimant filed this suit. The respondents did not enter appearance or file a defence. The court framed four issues and held that the respondents failed to discharge the burden under section 43 of the Employment Act to prove the validity of the dismissal reasons; that the absence of a hearing breached section 41; and that the Chief of Staff, in terminating the claimant, usurped the County Public Service Board's disciplinary mandate, which was ultra vires and violated Articles 41, 47 and 236 of the Constitution. The claim for damages for discrimination failed for want of proof. The court awarded Kshs.4,323,982.83 in total, being notice, 10 months' compensation, prorata leave, gratuity and Kshs.2,000,000 general damages for constitutional violations, plus a certificate of service, costs and interest, subject to statutory deductions.

Key legal issues

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01

Validity of the reason for summary dismissal

Holding

The respondents failed to discharge the burden of proof under section 43 of the Employment Act, having not entered appearance or filed defence

Reasoning

The termination letter alleged absconding of duties and unlawful media engagement amounting to gross misconduct. The claimant denied the offences and attributed the dismissal to political battles. The respondents did not controvert the claimant's evidence, and the court held that the employer had not proved the reasons cited were valid and fair.

p. 4
02

Procedural fairness under section 41 of the Employment Act

Holding

The termination breached the fair procedure requirement because the claimant was not accorded a hearing

Reasoning

Section 41 requires the employer to explain the reasons for termination and to hear and consider representations before dismissal. The claimant was merely telephoned by the Governor's Political Advisor and told to collect his termination letter. This unrebuted evidence established that no hearing was accorded, rendering the summary dismissal procedurally unfair.

p. 4
03

Violation of constitutional rights (Articles 41, 47 and 236)

Holding

The termination by the Chief of Staff, an officer without disciplinary mandate, was ultra vires and violated the claimant's rights to fair labour practices and fair administrative action

Reasoning

Under the County Government Act, the County Public Service Board has the sole mandate of disciplining county public officers. The Chief of Staff usurped that mandate and terminated the claimant without due process, breaching natural justice and Article 236 of the Constitution, which bars dismissal of public officers without following due process of law.

p. 5
04

Alleged discrimination under Article 27(5)

Holding

The claim of discrimination failed for want of proof

Reasoning

The claimant relied on the reinstatement of his colleague Joyce Lengeiya by the Ombudsman's intervention to allege discrimination. However, he did not adduce evidence demonstrating that he was dismissed for the same reasons as the colleague who was reinstated, so the discrimination claim failed despite other constitutional violations being established.

p. 5

Legal principles established

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  • The employer bears the burden of proving the reason for termination of employment
  • An employer must hear and consider the employee's representations before summarily dismissing an employee on grounds of misconduct
  • Only the County Public Service Board has the mandate to discipline officers in the county public service; dismissal by the Chief of Staff is ultra vires and a constitutional violation

Court orders

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  1. 1.Declaration that the termination of the claimant's contract of service was unfair and unlawful
  2. 2.Payment of one month's salary in lieu of notice of Kshs.145,450.00
  3. 3.Compensation of 10 months' salary for unfair termination of Kshs.1,454,500.00
  4. 4.Leave pay of Kshs.114,665.83 on prorata basis
  5. 5.Gratuity of Kshs.609,367.00 for 22 months served
  6. 6.General damages of Kshs.2,000,000.00 for violation of constitutional rights under Articles 41 and 47
  7. 7.Costs and interest at court rates from the date of judgment, subject to statutory deductions
  8. 8.Certificate of service to issue to the claimant

Authorities

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Legislation

  • Constitution of KenyaArticle 47
  • Constitution of KenyaArticle 27(5)
  • Constitution of KenyaArticle 41
  • Constitution of KenyaArticle 50
  • Constitution of KenyaArticle 236
  • Employment ActSections 35, 41, 42(1), 43, 44(3), 44(4), 49, 51
  • County Government ActSection 77
  • Employment and Labour Relations Court (Procedure) RulesRule 28(3)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (suit filed after exhaustion of Public Service Commission appeal under section 77 of the County Government Act)

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, "Loronyokwe v County Government of Samburu & 2 others (Cause E051 of 2022) [2023] KEELRC 1852 (KLR)", Case Analysis (2023). Cause No. 3 of 2022 (filed 23rd December 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1852/eng@2023-07-28

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