Matemba v County Government of Kakamega (Claim E025 of 2023) [2023] KEELRC 2207 (KLR)
The bottom line
#Kenya's Employment Court confirmed that county executive committee members' jobs end when their appointing governor leaves office, dismissing all claims except the certificate of service.
What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant's CECM contract, including the extension to 31st December 2022, survived the exit of the appointing governor
No. The extension by the former governor was irregular and the CECM's term ceased by operation of law under Article 179(7) when the former governor exited office
The court found the 7th March 2022 extension irregular for two reasons: it was made while a valid contract subsisted, and it extended beyond the appointing governor's term contrary to Article 179(7). Adopting the Court of Appeal decision in Kisumu County Public Service Board v Okuro, the court held the CECM's term ran concurrently with the appointing governor's and ceased on the governor's exit, when the new governor was sworn in on 15th September 2022.
Whether the termination was unfair for lack of due process
No. The termination by the new governor was supported by law; the Claimant's term lapsed by effluxion of time and operation of law
Since the CECM's term ceased by operation of law upon the new governor's assumption of office, there was no mandate on the new governor to continue engaging the Claimant. The reasons in the termination letter, founded on Article 179 of the Constitution, were valid. The EACC advisory did not apply to CECMs, who are not recruited by the Public Service Board, and the discrimination argument failed because the substantive claim of a valid contract had failed.
Whether the Claimant could claim legitimate expectation to serve the extended contract term
No legitimate expectation could accrue; there is no right to property in a public office
Relying on its earlier decision in Sabana v County Government of Kakamega and the authorities therein including Attorney General v Andrew Kiplimo Sang Muge, the court held that a public office is not the property of the office-holder and no one has a right to remain in office for the full term. The extension being an irregularity by the outgoing governor, no legitimate expectation could accrue to the Claimant.
What remedies, if any, was the Claimant entitled to
Only a Certificate of Service under Section 51 of the Employment Act, 2007; all other reliefs dismissed
The Claimant had been paid his September 2022 salary, one month's salary in lieu of notice, and gratuity, and confirmed no pending contractual payments. Compensation, damages for reputation and discrimination were not merited as the termination was a normal termination by operation of law. The court, exercising discretion given the confusion caused by the outgoing governor's extension, ordered each party to bear own costs.
Legal principles established
#- Under Article 179(7) of the Constitution, the term of office of a County Executive Committee Member appointed by a governor is tied to the term of the appointing governor and ceases when the governor ceases to hold office
- There is no legitimate expectation to hold a public office to the end of its term, since a public office is not the property of the office-holder
Court orders
#- 1.The Claimant to be issued with a Certificate of Service under Section 51 of the Employment Act, 2007
- 2.The claim dismissed in its entirety save for the issuance of the Certificate of Service
- 3.Each party to bear own costs in the Claim
- 4.Right of appeal in 30 days
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under Article 162(2) of the Constitution over employment and labour relations disputes; Employment Act, 2007 and County Government Act, 2012
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Wanguhu v Kania [1985] KECA 64 (KLR)[1985] KECA 64 (KLR)30 May 1985applied
Cite this brief
#Cite this brief
Caselaw, "Matemba v County Government of Kakamega (Claim E025 of 2023) [2023] KEELRC 2207 (KLR)", Case Analysis (2023). ELRC Cause formerly Bungoma E028 of 2022, transferred to Kakamega. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2207/eng@2023-09-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.