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ELRCDismissedPetition No. E004 of 2023 (Notice of Motion and Petition both dated 14th April 2023)· [2023] KEELRC 1971 (KLR)

Abdi v Governor, Kakamega County Government & 2 others; Maloba (Interested Party) (Employment and Labour Relations Petition 3 of 2023) [2023] KEELRC 1971 (KLR)

Employment and Labour Relations Court
27 July 2023
8,025 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~32 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The Petitioner, former CEO of Kakamega County Water and Sanitation Company (KACWASCO) appointed on 23rd March 2020 for a three-year renewable term, was sent on compulsory terminal leave by letter dated 30th March 2023 effective 1st April 2023, with his contract stated to end on 30th April 2023. He filed a petition and Notice of Motion seeking conservatory orders, declarations of constitutional violations (Articles 41, 47, 236 and others), payment of salary for a claimed 4th and 5th contract years of Kshs. 14,211,000/-, and damages, arguing his term had been extended to five years by the HR Manual (December 2020) and Amended Articles of Association. The Respondents and Interested Party (the Acting CEO) contended the contract lapsed by effluxion of time, that the later policy documents operated prospectively and were never incorporated into his contract, and that the petition was a disguised employment claim offendig constitutional avoidance. The court framed four issues. It held the petition met the Anarita Karimi Njeru precision threshold and that constitutional avoidance did not divest its jurisdiction, following County Government of Garissa v Idris Aden Mukhtar. On the merits, it held that under section 10(5) of the Employment Act a contract varies only by written mutual agreement; the HR Manual and Articles were documents of general application never incorporated, and the letter of appointment superseded all other documents. The contract therefore remained a three-year fixed term ending 30th April 2023. Terminal leave was a communication of non-renewal, not a suspension; no legitimate expectation of renewal arises in fixed-term contracts. All remedies failed. The petition and application were dismissed in their entirety with each party bearing its own costs.

Key legal issues

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01

Whether the petition met the Anarita Karimi Njeru threshold

Holding

The petition was sufficient; the court rejected the contention that it was fatally defective

Reasoning

Although the Petitioner replicated constitutional provisions almost word for word, the court found he had specifically pleaded the failure to accord him an opportunity to respond before suspension as violating Article 47, Article 236(b) and fair administrative action under the Fair Administrative Action Act. The Respondents could understand the facts and provisions complained of, so the pleading threshold was met.

p. 9
02

Whether the doctrine of constitutional avoidance applied

Holding

It did not; the court retained jurisdiction over the petition

Reasoning

Relying on its own prior decision in Dr. Beatrice Awimbo Sabana, the court noted conflicting Court of Appeal authority (Gabriel Mutava vs County Government of Garissa v Idris Aden Mukhtar) and upheld the recent decision in Idris Aden Mukhtar holding that the Court has jurisdiction to grant Article 23 remedies in a petition. The petition was not struck out on this ground.

p. 10
03

Whether the Petitioner's contract was varied from three years to five years by the HR Manual and Amended Articles of Association

Holding

No variation occurred; the contract remained a three-year fixed term ending 30th April 2023

Reasoning

Applying James Ang'awa Atanda v JSC, a contract may only be varied in writing in consultation with the employee. The HR Manual and Articles of Association were documents of general application never expressly incorporated into the Petitioner's contract, and the letter of appointment expressly superseded all other documents. No new contract was produced. The letter of 22nd March 2023 was also misdirected to the 1st Respondent instead of the Board.

p. 15
04

Whether the Petitioner was entitled to the remedies sought

Holding

He was not; the contract lapsed by effluxion of time and the terminal leave was not a suspension

Reasoning

Having found the contract expired on 30th April 2023, claims for salary for years 4 and 5, damages for unlawful suspension and discrimination had no basis. Renewal of a fixed-term contract is at the employer's discretion and no legitimate expectation arises. Terminal dues claims were premature as the Petitioner was still on terminal leave, and the court would not interfere with the company's internal staffing absent illegality.

p. 15

Legal principles established

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  • A constitutional petition must plead with a reasonable degree of precision the provisions said to be infringed and the manner of infringement (Anarita Karimi Njeru threshold)
  • An employment contract may only be varied in writing and in consultation with the employee under section 10(5) of the Employment Act; general policy documents do not automatically vary a contract
  • Legitimate expectation does not arise in the renewal of a fixed-term contract; non-renewal is not unfair termination
  • The doctrine of constitutional avoidance does not bar an employment-rights petition where remedies are sought under Article 23, per County Government of Garissa v Idris Aden Mukhtar

Court orders

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  1. 1.The Notice of Motion and the Petition both dated 14th April 2023 are dismissed in their entirety
  2. 2.Each party to bear its own costs in this petition

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 1, 2, 3, 10, 19, 20, 21, 22, 23, 25, 27, 28, 41, 47, 50, 165, 200, 236, 258
  • Employment ActSections 5(3), 10(2), 10(5), 45, 49
  • Fair Administrative Action Act, No. 4 of 2015General
  • Kakamega County Water Act, 2019 (Repealed)Section 13
  • Kakamega County Water and Sanitation Services Act, 2021Part X, Section 66 (transitional provisions)
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure RulesRule 10(2)(d)

Cases cited (24)

  • Anarita Karimi Njeru v Attorney General
    [1979] eKLR
  • Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others
    [2014] eKLR
  • David Mathu Kimingi v SMEC International PTY Limited
    (2021) eKLR
  • David Gathu Thuo v Attorney General & Another
    (2021) eKLR
  • Kenya Pharmaceutical Association & Another v Nairobi City County and 46 other County Governments & Another
    (2017) eKLR
  • Kenneth Shitsugane Olembo v The County Government of Kakamega & Another
    Kakamega Environment and Land Court Petition No. E003 of 2021
  • S v Mhlungu
    1995 (3) SA 867 (CC)
  • Dr. Beatrice Awimbo Sabana v The County Government of Kakamega County & 2 Others
    ELRC Petition No. E012 of 2022
  • County Government of Garissa & another v Idris Aden Mukhtar & 2 others
    (2020) eKLR
  • Gabriel Mutava & 2 others v Managing Director Kenya Ports Authority & another
    (2016) eKLR
  • Francis Chamwor P.S.O Muken & 2 others v Speaker Trans Nzoia County Assembly & 3 others
    (2020) eKLR
  • Stephen Mbugua Chege v Nairobi City Water & Sewerage Company
    (2017) eKLR
  • Agnes Ongadi v Kenya Electricity Transmission Company Limited
    [2016] eKLR
  • Kenya Medical Research Institute v Mukhwana
    (2019) eKLR
  • Galgalo Jarso Jillo v Agricultural Finance Corporation
    (2021) eKLR
  • David Kipchumba Kimosop v Kerio Valley Development Authority
    (2022) eKLR
  • Nicholas Muasya Kyula v Farmchem Limited
  • MTM v KIE Limited & Another
    (2020) eKLR
  • Raphael Munyua Ndung'u v County Government of Lamu & Another
    (2021) eKLR
  • Mbarak Abdulqadir Abdalla v County Government of Lamu & County Public Service Board, Lamu County
    (2022) eKLR
  • James Ang'awa Atanda & 10 others v Judicial Service Commission
    [2017] eKLR
  • Commission for Human Rights and Justice v Michelle Bibi Fondo & 2 Others
    eKLR
  • Transparency International-Kenya v Teresa Carlo Omondi
    Nairobi Civil Appeal No. 81 of 2018
  • Bungoma ELRC Petition No. E004 of 2022 (Petitioner's own prior petition)
    Petition No. E004 of 2022
Jurisdiction invoked
Article 23 of the Constitution of Kenya, 2010 (employment and constitutional remedies); Employment Act, 2007

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, "Abdi v Governor, Kakamega County Government & 2 others; Maloba (Interested Party) (Employment and Labour Relations Petition 3 of 2023) [2023] KEELRC 1971 (KLR)", Case Analysis (2023). Petition No. E004 of 2023 (Notice of Motion and Petition both dated 14th April 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1971/eng@2023-07-27

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