Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedNot stated in the judgment text provided· [2023] KEELRC 2034 (KLR)

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)

Employment and Labour Relations Court
27 July 2023
3,816 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

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

#
The Estate of Florence Wairimu Ndung'u, represented by its administrators, sued the County Government of Lamu and its Governor following her summary dismissal as County Executive Committee Member for Agriculture and Water Development on 26 September 2018, days after reinstatement pursuant to a decree in Mombasa ELRC Petition No.1 of 2018. The Estate claimed the dismissal was without notice, hearing or valid reasons, circumvented a valid court decree, and was ethnically discriminatory against her as a member of the minority Kikuyu community in Lamu. It sought the balance of her five-year contract salary, gratuity, damages and a certificate of service. The respondents, who called no witness, contended she was dismissed for incompetence in April 2018, reinstated, and thereafter absconded duty until her death on 30 August 2020. The court found the respondents had not challenged the authenticity of the dismissal letter and had adduced no evidence of notice or hearing. Relying on authority that a Governor must have valid and compelling reasons to remove a CECM and cannot act arbitrarily, and that an employer pleading desertion must prove steps to trace and recall the employee, the court held the termination unfair. On discrimination, the burden shifted to the employer under Section 5(6) of the Employment Act; finding no justification for targeting the deceased on ethnic grounds, the court found direct discrimination, unconstitutional and unlawful. The court declined the full remaining-term salary and full-term gratuity, awarding instead six months' gross salary as compensation (Ksh.1,679,274), general damages of Ksh.2,000,000 for discrimination, gratuity for the single year served (Ksh.86,762.49), an unconditional certificate of service, and costs of the suit.

Key legal issues

#
01

Whether the summary dismissal of 26 September 2018 was unfair and unlawful

Holding

The dismissal was unfair; no valid reason, notice or hearing was demonstrated

Reasoning

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.

p. 6
02

Whether the deceased was discriminated against on grounds of ethnicity

Holding

Direct discrimination on the basis of her Kikuyu ethnicity was established

Reasoning

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.

p. 7
03

Whether the respondents circumvented the court decree of 20 September 2018 by reinstating and simultaneously dismissing the claimant

Holding

The simultaneous issue of reinstatement and dismissal letters amounted to abuse of court process and denial of due process

Reasoning

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.

p. 2

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. 1.A declaration that the claimant (deceased) employment terminated unfairly
  2. 2.A declaration that the claimant (deceased) was discriminated against by the respondents
  3. 3.General damages awarded at Ksh.2,000,000
  4. 4.Compensation awarded at Ksh.1,679,274
  5. 5.Service gratuity Ksh.86,762.49
  6. 6.Certificate of Service shall issue unconditionally
  7. 7.Costs of the suit

Authorities

#

Legislation

  • Constitution of Kenya, 2010Articles 10, 236, 27(1), 27(4), 28, 47(2), 50(1)
  • Employment Act, 2007Sections 5(3), 5(6), 41, 43(1)
  • County Government ActSection 40

Cases cited (10)

  • County Government of Nyeri & another v Cecilia Wangechi Ndungu
    [2015] eKLR
  • County Government of Garissa & another v Idriss Aden Mukhtar & 2 others
    [2020] eKLR
  • Ayub Kombe Ziro v Umoja Rubber Products Limited
    [2022] eKLR
  • James Okeyo v Maskant Flower Limited
    [2015] eKLR
  • Kenneth Onialo v Majlis Resort Lamu t/a Majlis Lamu Ltd
    [2022] eKLR
  • G M V v Bank of Africa Kenya Limited
    [2013] eKLR
  • Benedict Abonyo Omolo v Judicial Service Commission & another
    Cause No.47 of 2015
  • Gichuru v Package Insurance Brokers Ltd (Petition 36 of 2019)
    [2021] KESC 12 (KLR)
  • Ol Pejeta Ranching Limited v David Wanjau Muhoro
    [2017] eKLR
  • Mary Mwaki Masinde v County Government of Vihiga & 2 Others
    (2015) eKLR
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.