Munje v County Assembly of Tana River & 2 others; Majimbo & 2 others (Interested Parties) (Petition E005 of 2023) [2024] KEELRC 698 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Contempt of court
The 1st respondent and 3rd interested party wilfully disobeyed the status quo orders of 23 October 2023 served on 6 November 2023, offering no apology; a sanction in costs was imposed
Service of the orders was admitted. The Assembly proceeded to table and adopt its committee report rejecting the nominee, citing the 21-day statutory timeline under the Public Appointments (County Assemblies Approval) Act. The court held that impossibility of compliance was no justification and recourse lay with the court; unapologetic disobedience attracted costs as a sanction.
Whether the petitioner was County Attorney by the letter of 10 October 2022
No. The appointment failed the mandatory requirements of Sections 5 and 31 of the Office of the County Attorney Act as his name was never submitted to the County Assembly for vetting and approval, and his prior contract as Legal Advisor had lapsed with the Governor's tenure in August 2022 without unequivocal renewal
The Legal Advisor's contract expired with the Governor's term under its own terms, consistent with the Court of Appeal's interpretation of the transitional provision. Under Section 19(5) of the Employment Act a fixed-term contract does not renew by implication. Section 5 requires Governor nomination with County Assembly approval, and the Governor has power only to nominate, not appoint.
Constitutional violations and constructive dismissal
Constructive dismissal was not made out, but the 2nd respondent's initiation of the appointment and refusal to complete the statutory recruitment constituted unjustified discrimination under Section 5(3) of the Employment Act
The 2nd respondent knowingly issued the appointment letter, failed to submit the petitioner's name for vetting, withheld his salary, and preferred third parties, leaving the petitioner 'hanging on his letter'. The revocation letter was never served. However, the petitioner contributed by failing to mitigate, declining other employment offers and withdrawing his earlier petition on a promise that was never honoured.
Remedies
Damages of six months of the promised consolidated salary (Kshs. 404,250 x 6 = Kshs. 2,425,500) awarded under Section 12 of the Employment and Labour Relations Act, reflecting a 50% apportionment for the year under promise and the failure to mitigate
The court exercised its statutory power to award damages for discriminatory recruitment. It took into account the petitioner's conduct, the withdrawal of his earlier petition on an unfulfilled promise, and his failure to secure comparable employment despite being a highly sought-after advocate, awarding only half of the one-year period he remained idle.
Legal principles established
#- Court orders must be obeyed; proceeding in disregard of a status quo order is a wilful affront to the administration of justice warranting sanction
- A fixed-term contract tied to a governor's tenure does not renew by implication; changes to employment particulars require written notice
- Appointing a candidate by letter then refusing to complete the statutory recruitment process amounts to unlawful discrimination against a prospective employee
- A purported letter of revocation not communicated to the employee through formal methods cannot be relied upon
Court orders
#- 1.A declaration that the 2nd respondent discriminated against the petitioner in the recruitment for the position of County Attorney, County Government of Tana River County
- 2.Damages of Kshs. 2,425,500 awarded against the 2nd respondent
- 3.A finding that the 1st respondent and 3rd interested party admitted contempt of court orders issued on 23 October 2023
- 4.The 1st respondent and the 3rd interested party to jointly and severally meet the costs due to the petitioner
- Jurisdiction invoked
- Articles 41, 47, 50 and 236 of the Constitution read with Section 12 of the Employment and Labour Relations Act, 2011 (ELRC jurisdiction over employment and constitutional violations in the employment relationship)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Munje v County Assembly of Tana River & 2 others; Majimbo & 2 others (Interested Parties) (Petition E005 of 2023) [2024] KEELRC 698 (KLR)", Case Analysis (2024). Not stated in the judgment (petition filed 5th October 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/698/eng@2024-03-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.