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ELRCPartially AllowedPetition (ELRC, Nyeri)· [2024] KEELRC 1190 (KLR)

Mberia & 3 others v County Government of Meru & 2 others (Petition E001 of 2022) [2024] KEELRC 1190 (KLR)

Employment and Labour Relations Court
22 May 2024
OMOnesmus N Makau
4,204 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled that Meru County officials illegally sent four board officers on indefinite compulsory leave without hearings, quashed the letters, and awarded damages.

What this practically means

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Executive summary

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Four chief administrative officers of semi-autonomous Meru County boards petitioned the ELRC, contending that letters of September 2022 from the County Secretary sending them on indefinite compulsory leave, without board resolutions, without handover and with replacements appointed, violated their rights under Articles 25, 27, 28, 35, 41, 47, 50 and 236 of the Constitution. They sought declarations, two orders of certiorari, exemplary damages and costs. A preliminary objection was dismissed in December 2022, and contempt proceedings followed the respondents' disobedience of conservatory orders of 4 October 2022; those proceedings concluded in November 2023 with the petitioners escorted back to work. The respondents argued the petition was moot, that the leave was a justified temporary administrative measure to enable board re-organization, and that the petition was defective. The court held the petition was not moot since the main dispute remained live and the 1st and 3rd petitioners were still employed; that the pleading met the Anarita Karimi Njeru threshold; and that the 1st respondent had no mandate to issue the leave letters, which alleged no wrongdoing and afforded no hearing. The court found violations of the rights to fair labour practices, dignity, non-discrimination, fair administrative action and Article 236 protection. Judgment was entered for the petitioners: a declaration of nullity, certiorari quashing the leave letters, general damages of Kshs. 1,000,000 to the 1st, 2nd and 3rd petitioners (exemplary damages refused, and the certiorari on deployments declined as overtaken by events; the 4th petitioner was denied relief for failing to comply with court orders), and costs to the petitioners.

Key legal issues

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01

Mootness

Holding

The petition was not moot; the 1st and 3rd petitioners were still in employment and the conservatory orders did not render the main dispute otiose.

Reasoning

The respondents argued the conservatory orders revoked the impugned letters and that the 2nd and 3rd petitioners' contracts had lapsed. The court found the 1st and 3rd petitioners still employed, and held the core dispute—lawfulness of the compulsory leave letters—remained live notwithstanding the interim orders.

p. 5
02

Competence of the constitutional petition

Holding

The petition met the Anarita Karimi Njeru threshold of precision.

Reasoning

The petitioners pleaded with reasonable clarity the complaint, the constitutional provisions infringed (Articles 25, 27, 28, 35, 41, 47, 50, 232 and 236) and the manner of infringement, enabling the respondents to respond.

p. 6
03

Violation of constitutional rights

Holding

The 1st respondent acted ultra vires and without just cause; the compulsory leave violated Articles 27, 28, 41, 47 and 236.

Reasoning

No evidence showed the 1st respondent had mandate from the boards to send the petitioners on compulsory leave. The letters alleged no wrongdoing, afforded no hearing, and were issued by a person without contractual mandate over the petitioners, amounting to unfair labour practice, discrimination on perceived political inclination, and breach of fair administrative action and Article 236 protection.

p. 6

Legal principles established

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  • A new political regime is bound by employment contracts entered by the previous government and public officers are protected from victimization under Article 236.
  • Condemning an employee to indefinite compulsory leave and withholding salary amounts to unfair labour practice entitling the employee to sue for constructive dismissal.

Court orders

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  1. 1.Declaration that sending the 1st to 4th Petitioners on compulsory leave breached Articles 27, 28, 41, 47 and 236 of the Constitution and is null and void
  2. 2.Order of certiorari quashing the compulsory leave letters dated 6/9/2022, 6/9/2022, 29/8/2022 and 7/9/2022
  3. 3.General damages of Kshs. 1,000,000 awarded to the 1st, 2nd and 3rd Petitioners
  4. 4.Costs awarded to the petitioners

Authorities

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Legislation

  • Constitution of KenyaArticles 1, 2, 3, 23, 25, 27, 28, 35, 41, 47, 50, 73, 157, 162(2), 165, 165(5), 232, 236, 258, 259; Chapter 4
  • Leadership and Integrity Act
  • County Governments Actsections 44(3), 56(2), 77
  • Fair Administrative Actions Actsection 4(3)
  • Public Service Commissions Actsections 85, 87(2)
  • Employment and Labour Relations Court Actsection 12
  • Meru Alcoholic Drinks Control Act
  • Meru County Microfinance Corporation Act
  • Meru County Revenue Act
  • Meru County Water and Sanitation Services Act
  • ELRC Procedure RulesRule 28(3)

Cases cited (6)

  • Ayubu Kombe Ziro v Umoja Rubber Products Limited
    [2022] eKLR
  • Evans Kidero v Speaker of Nairobi City County Assembly & Another
    [2018] eKLR
  • Bernard Mwaura Mbuthia v Nyahururu Water & Sanitation Company Limited; County Government of Laikipia (Interested Party)
    [2019] eKLR
  • Hezron Kihumba Kamotho v Teachers Service Commission
    [2019] eKLR
  • Anarita Karimi Njeru v Republic
    [1979] eKLR
  • EWA & 2 others v Director of Immigration and Registration of Persons & another
    [2018] eKLR
Jurisdiction invoked
Articles 1, 2, 3, 73, 157, 165, 232, 236, 258, 259 and Chapter 4 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, "Mberia & 3 others v County Government of Meru & 2 others (Petition E001 of 2022) [2024] KEELRC 1190 (KLR)", Case Analysis (2024). Petition (ELRC, Nyeri). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1190/eng@2024-05-22

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