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ELRCDismissedCause No 6 of 2023· [2023] KEELRC 2193 (KLR)

Nyangala v Vihiga County Government (Cause 6 of 2023) [2023] KEELRC 2193 (KLR)

Employment and Labour Relations Court
21 September 2023
JKJemimah Keli
4,076 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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The Employment Court dismissed a woman's claim against Vihiga County because she could not prove she was actually employed, warning that only the County Public Service Board can hire county workers.

What this practically means

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Executive summary

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The claimant, by a memorandum of claim dated 14th June 2016 and amended on 26th October 2022, sought an order directing the respondent (Vihiga County Government) to appoint her as an information officer from 4th November 2013 to the end of the Governor's term, together with underpaid salaries and allowances for job group 'J', costs and interest. She alleged that former Governor Akaranga had orally engaged her in 2013 to set up a radio station and promised her appointment as a radio producer in job group 'J', serving at the Governor's pleasure under Article 179(2) of the Constitution. The respondent denied the employment relationship, maintaining that employment in the county public service is the preserve of the County Public Service Board, that the only engagement was a 3-month temporary appointment as information officer effective 1st September 2014, and that the claimant failed to exhaust remedies under section 77 of the County Governments Act. The court framed four issues and held that the claimant failed to discharge the burden of proving employment outside the 3-month contract; her story of appointment by the Governor was uncorroborated, the NSSF statement and badge did not prove employment, and the demand letters for employment confirmed she was not employed. Article 179(2) was inapplicable, and employment in the county public service is the exclusive mandate of the County Public Service Board under section 59 of the County Governments Act. Applying the Court of Appeal's decision in Transparency International - Kenya v Omondi, no legitimate expectation arose. The jurisdictional issue was overtaken, though the court would have required exhaustion of the Public Service Commission appeal mechanism. The claim was dismissed with each party bearing own costs, and a right of appeal within 30 days.

Key legal issues

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01

Existence of employer-employee relationship

Holding

The claimant failed to prove employment by the respondent beyond the 3-month temporary appointment of 2014; no appointment by the Governor was proved and any such appointment would be an illegality since the County Public Service Board holds the exclusive mandate.

Reasoning

The claimant's account of a phone call and meeting with the former Governor was uncorroborated by documents or independent witnesses. The temporary appointment letter (C-exhibit 3) was for 3 months from September 2014 with no renewal clause. The NSSF statement lacked 2014 deductions and was weakened by demand letters for employment, which showed she was not in employment. The badge related to the national government/CARPS programme, not the respondent.

p. 6
02

Legitimate expectation to be employed as Radio Producer in job group 'J'

Holding

The claim failed; the alleged promises were not proved and the position does not fall under Article 179(2) of the Constitution, appointments thereunder requiring county assembly approval.

Reasoning

The claimant produced no advert and no proof of interview by the County Public Service Board. The Court of Appeal decision in Transparency International - Kenya v Omondi held that absent any promise or indication of renewal, termination under a fixed-term contract gives rise to no legitimate expectation. The court applied that reasoning and found the expectation of serving at the Governor's pleasure misplaced.

p. 7
03

Jurisdiction of the court

Holding

The issue was overtaken by the finding of no employer-employee relationship, but had such a relationship existed the court would have declined jurisdiction for failure to exhaust the appeal mechanisms to the Public Service Commission under section 77 of the County Governments Act.

Reasoning

The respondent's preliminary objection under section 77 of the County Governments Act was canvassed within the claim. The court held that a person dissatisfied with a County Public Service Board decision must first appeal to the Public Service Commission, so the court would have declined jurisdiction had employment been established.

p. 7
04

Entitlement to reliefs

Holding

None of the reliefs sought could be granted as the court's remedial jurisdiction is premised on a proven employment relationship, which the claimant failed to establish.

Reasoning

Under section 12 of the Employment and Labour Relations Act the court's power to award reliefs depends on existence of a dispute arising out of employment between employer and employee. The claimant not having established such a relationship, the entire claim lacked merit and was dismissed with each party bearing own costs.

p. 8

Legal principles established

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  • Employment in the county public service is an exclusive mandate of the County Public Service Board under section 59 of the County Governments Act; a governor cannot lawfully appoint county public officers outside that board
  • The ELRC's jurisdiction in an employment claim is hinged on proof of an employer-employee relationship, and the burden of proving that fact lies on the party alleging it
  • A mere application for employment does not confer a legitimate expectation of employment; absent a promise or indication of renewal, an expired fixed-term contract creates no expectation of continuation

Court orders

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  1. 1.The Memorandum of Claim amended on 26th October 2022 is dismissed
  2. 2.Each party to bear own costs in the suit
  3. 3.Right of appeal in 30 days

Authorities

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Legislation

  • Constitution of KenyaArticle 179(2)
  • Constitution of KenyaArticle 235
  • Constitution of KenyaArticle 162(2)
  • County Governments ActSection 59
  • County Governments ActSection 77
  • Employment ActSection 9(1)(b)
  • Employment and Labour Relations Court Act / Employment and Labour Relations ActSection 12
  • Evidence ActSections 107, 108, 109

Cases cited (3)

  • County Government of Nyeri and another v Cecilia Wangechi Ndungu
    [2015] eKLR
  • Teresa Carlo Omondi v Transparency International Kenya
    2017 eKLR
  • Transparency International - Kenya v Omondi (Civil Appeal 81 of 2018)
    [2023] KECA 174 (KLR) (17 February 2023)
Jurisdiction invoked
Section 12 of the Employment and Labour Relations Court Act / Article 162(2) of the Constitution

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, "Nyangala v Vihiga County Government (Cause 6 of 2023) [2023] KEELRC 2193 (KLR)", Case Analysis (2023). Cause No 6 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2193/eng@2023-09-21

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