Kitheka & another (Suing as the administrators of the Estate of the Late Florence Wairimu Ndung’u - Deceased) v County Government of Lamu & another (Cause 12 of 2021) [2023] KEELRC 2034 (KLR)
The bottom line
#Lamu County was ordered to pay an estate nearly Ksh.3.8 million for unfairly and discriminatorily dismissing a county executive without notice, hearing, or valid reason.
What this practically means
#Executive summary
#Key legal issues
#Whether the summary dismissal of 26 September 2018 was unfair and unlawful
The dismissal was unfair; no valid reason, notice or hearing was demonstrated
Termination of employment requires valid reason and due process under Section 41 of the Employment Act, and removal of a CECM requires grounds under Section 40 of the County Government Act. The 2nd respondent did not challenge the authenticity of the dismissal letter and produced no evidence of notice or hearing. The claim of absconding was left bare, and the claimant's prompt service of the decree showed diligence, not desertion.
Whether the deceased was discriminated against on grounds of ethnicity
Direct discrimination on the basis of her Kikuyu ethnicity was established
Under Section 5(6) of the Employment Act the employer bears the burden of disproving discrimination. The respondents called no witness and offered no justification for targeting the deceased, who as a minority Kikuyu CECM represented diversity. Using ethnicity to deny a right is direct discrimination contrary to Article 27(4) of the Constitution and therefore unconstitutional and unlawful.
Whether the respondents circumvented the court decree of 20 September 2018 by reinstating and simultaneously dismissing the claimant
The simultaneous issue of reinstatement and dismissal letters amounted to abuse of court process and denial of due process
The claimant extracted and served the decree promptly; the respondents then issued a reinstatement letter and, days later, a dismissal letter based on the same grounds already litigated in ELRC Petition No.1 of 2018, without any notice or hearing. This conduct contravened Articles 47 and 236 of the Constitution and Section 40 of the County Government Act.
Legal principles established
#- A Governor cannot remove a CECM at pleasure; good cause and a fair process are required
- An employer alleging absconding/abandonment of duty must prove steps taken to trace and recall the employee; desertion does not itself end the contract
- In discrimination claims under Section 5(6) of the Employment Act, the employer bears the burden of proving that discrimination did not occur
Court orders
#- 1.A declaration that the claimant (deceased) employment terminated unfairly
- 2.A declaration that the claimant (deceased) was discriminated against by the respondents
- 3.General damages awarded at Ksh.2,000,000
- 4.Compensation awarded at Ksh.1,679,274
- 5.Service gratuity Ksh.86,762.49
- 6.Certificate of Service shall issue unconditionally
- 7.Costs of the suit
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Court Act and Article 162(2) of the Constitution (employment and labour relations dispute); not expressly cited in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kitheka & another (Suing as the administrators of the Estate of the Late Florence Wairimu Ndung’u - Deceased) v County Government of Lamu & another (Cause 12 of 2021) [2023] KEELRC 2034 (KLR)", Case Analysis (2023). Not stated in the judgment text provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2034/eng@2023-07-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.