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ELRCPartially AllowedPetition No. E006 of 2024 (not stated on the face of the judgment)· [2024] KEELRC 1033 (KLR)

Ong’era v County Government of Kisii & 2 others (Petition E005 of 2024) [2024] KEELRC 1033 (KLR)

Employment and Labour Relations Court of Kenya
8 May 2024
RSRadido Stephen
2,557 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Employment Court ruled that a Kenyan governor cannot unilaterally send a County Executive Committee Member on compulsory leave; removal must go through the County Assembly.

What this practically means

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Executive summary

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The Petitioner, a County Executive Committee member for Trade, Tourism, Industry and Marketing in Kisii County, was placed on compulsory leave by the Governor on 1 December 2023, citing sections 39 and 76(6) of the County Governments Act, to facilitate investigations into alleged gross misconduct, abuse of office and constitutional violations. The leave was extended for six weeks. The Petitioner's request for particulars went unanswered, and he filed this Petition alleging unfair termination and violations of Articles 10, 20, 236, 35, 41 and 47 of the Constitution, seeking declarations, certiorari, reinstatement, and in the alternative, compensation for constructive or unlawful termination, plus a declaration that section 76(6) of the County Governments Act is unconstitutional. The Court held the dispute justiciable, as the compulsory leave decision was real and operative. It found that a CECM is excluded from the definition of the county public service under section 2 of the Act, so section 76(6) did not apply and could not ground the leave; the constitutional challenge to that provision was therefore misplaced. Relying on section 40 of the Act and Article 236, the Court held that removal of a CECM must proceed through the County Assembly, which alone may investigate the grounds alleged; the Governor lacked the instruments and lawful authority to send the Petitioner on compulsory leave or investigate him. The Court of Appeal's Mutwol decision upholding compulsory leave for ordinary employees was distinguished as inapplicable to office holders. Constructive dismissal failed since the Petitioner had not resigned. The Petition succeeded in part: the Court declared the compulsory leave unlawful, quashed it by certiorari, ordered reinstatement, and awarded the Petitioner costs against the Respondents.

Key legal issues

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01

Whether the Governor could lawfully send a CECM on compulsory leave under sections 39 and 76(6) of the County Governments Act

Holding

No. Section 76(6) does not apply to CECMs, who are excluded from the county public service, and the removal framework in section 40 channels allegations through the County Assembly, not the Governor.

Reasoning

Section 2 of the County Governments Act expressly excludes CECMs from the county public service, so section 76(6) could not ground the compulsory leave. Section 40 provides the exclusive removal process, requiring a County Assembly motion and Select Committee investigation. The Governor lacks the instruments to conduct investigations and did not disclose any. The alleged complaints of gross misconduct and abuse of office fell squarely within section 40 and should have gone to the County Assembly.

p. 6
02

Whether the Mutwol compulsory-leave doctrine applied to the Petitioner

Holding

It did not; the case was distinguishable because it concerned ordinary employment under a collective bargaining agreement, not a holder of a constitutional/statutory office.

Reasoning

In Mutwol the Court of Appeal upheld compulsory leave as a lawful investigative tool where the CBA clothed the employer with suspension powers. The Petitioner, however, is an office holder whose position is recognised by Article 179 of the Constitution and is protected by the due process in Article 236. The ordinary-employment rationale could not be transposed to his removal, which is governed by a specialised statutory architecture.

p. 5
03

Whether the dispute was ripe and whether the Petition was an abuse of process for non-disclosure of the earlier Kisumu Petition

Holding

The dispute was justiciable because the challenged decision to send the Petitioner on compulsory leave was real and operative, not hypothetical; the non-disclosure/abuse objection did not succeed.

Reasoning

The Respondents argued, citing ripeness authority, that the Petitioner faced no removal process and was still receiving full benefits, rendering the question hypothetical. The Court held that the actual decision to send him on compulsory leave was not disputed and that its lawfulness is neither hypothetical nor idle. The Petitioner explained that the earlier Petition was withdrawn as defective before this one was filed.

p. 4

Legal principles established

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  • A member of a County Executive Committee is not part of the county public service under the County Governments Act.
  • A Governor has no lawful authority to send a CECM on compulsory leave or conduct disciplinary investigations into allegations against a CECM; removal must follow the County Assembly process under section 40 of the County Governments Act.
  • The Court of Appeal's compulsory-leave jurisprudence for ordinary employees does not apply to holders of statutory/constitutional offices such as CECMs.

Court orders

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  1. 1.A declaration that the 2nd Respondent's decision to send the Petitioner on compulsory leave was unlawful
  2. 2.An order of certiorari quashing the decision of the 2nd Respondent to send the Petitioner on compulsory leave
  3. 3.A mandatory order compelling the 1st and 2nd Respondents to reinstate the Petitioner to the position of County Executive Committee Member (CECM)
  4. 4.Costs of the Petition awarded to the Petitioner against the Respondents
Jurisdiction invoked
Original jurisdiction under the Employment and Labour Relations Court Act and Article 162(2) of the Constitution (employment and labour relations), not expressly stated in the judgment

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, "Ong’era v County Government of Kisii & 2 others (Petition E005 of 2024) [2024] KEELRC 1033 (KLR)", Case Analysis (2024). Petition No. E006 of 2024 (not stated on the face of the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1033/eng@2024-05-08

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