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ELRCDismissedPetition dated 15.08.2023· [2024] KEELRC 936 (KLR)

Kwamboka v County Secretary, City County of Nairobi & 2 others (Petition E161 of 2023) [2024] KEELRC 936 (KLR)

Employment and Labour Relations Court
17 April 2024
BOByram Ongaya
1,871 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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The Employment Court dismissed a former Nairobi County Attorney's bid to keep her job after finding her six-year extension letter was not genuine.

What this practically means

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Executive summary

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The petitioner, formerly County Attorney of Nairobi City County, petitioned seeking declarations that she was validly appointed for six years under section 6(1) of the County Attorney Act, 2020, orders of prohibition against the implementation of a letter dated 7th August 2023 removing her from office, a declaration that the county secretary could not remove her without following section 13 procedure, and a mandatory injunction reinstating her. The respondents, through the acting county secretary Patrick Analo, opposed the petition, arguing abuse of court process given prior related suits, that her tenure had lapsed, and crucially that the letter dated 20.07.2022 allegedly extending her term by six years, signed by former Governor Anne Kananu Mwenda, was a forgery. The former Governor swore an affidavit and testified, denying authorship. The court identified a single determinate issue: whether the former Governor issued the 20.07.2022 letter. On the evidence, the court found the letter not genuine on a balance of probability: it lacked a reference number and file folio, was not on the Governor's letterhead, and purportedly invoked the County Attorney Act before its commencement. The petitioner's own testimony undermined the document, she failed to produce the original, and the forensic expert conceded a signature could be imposed on a photocopy. The petition was dismissed with each party bearing its own costs, the court noting the protracted litigation involving the petitioner and the county.

Key legal issues

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01

Genuineness of the letter dated 20.07.2022 extending the petitioner's term

Holding

The letter was not genuine; the former Governor did not author or sign it

Reasoning

The letter lacked a reference number and file folio, was not on the Governor's letterhead, and purported to act under the County Attorney Act, 2020 before its commencement on 27.07.2020. The former Governor testified and denied authorship under cross-examination. The petitioner failed to avail the original, and the forensic expert relied only on a photocopy and conceded a signature could be imposed. On a balance of probability the document was a nullity.

p. 4
02

Whether the petitioner continues in office as County Attorney

Holding

The claim to continued tenure collapsed with the impugned letter

Reasoning

The petition was founded on a single factual point: the validity of the 20.07.2022 extension letter. Once that document was found not genuine, there was no basis for the declaration, prohibitory orders or mandatory injunction sought. Damages remained an available alternative remedy but were not pursued on a successful basis. The Court found the petitioner had been serving on a contract due to lapse in December 2022 and the alleged extension was highly improbable.

p. 5

Legal principles established

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  • A party relying on a document must avail the original; failure to do so, coupled with internal inconsistencies in the document, may defeat the claim on a balance of probability
  • A document dated before the commencement of the statute it purports to invoke is improbable and may be found not genuine on a balance of probability

Court orders

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  1. 1.The petition is dismissed
  2. 2.Each party to bear own costs

Authorities

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Legislation

  • County Attorney ActSections 6(1), 13, 31, 31(2), 4(2)
  • Nairobi City County Office of the County Attorney ActSection 4(2)
  • Office of the County Attorney Act, 2020Sections 6, 13, 31
Jurisdiction invoked
Employment and labour relations jurisdiction; petition under the County Attorney Act, 2020 (Article 162(2) First Schedule jurisdiction of the ELRC inferred)

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, "Kwamboka v County Secretary, City County of Nairobi & 2 others (Petition E161 of 2023) [2024] KEELRC 936 (KLR)", Case Analysis (2024). Petition dated 15.08.2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/936/eng@2024-04-17

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