Sang v Governor Kericho County & 2 others (Petition E001 of 2023) [2024] KEELRC 1631 (KLR)
The bottom line
#The Employment and Labour Relations Court voided Kericho Governor's nomination of a new County Attorney because the existing officeholder had not been lawfully removed first.
What this practically means
#Executive summary
#Key legal issues
#Whether the nomination of Alice Chepngetich Bett as County Attorney Kericho County was procedural
The nomination was unprocedural, null and void. The Petitioner was substantively gazetted as County Attorney on 27th November 2020 with no expiry date, met the qualifications under section 5 and section 31(2) of the Office of the County Attorney Act, and had not been removed under section 13. There was therefore no vacancy and the nomination was void.
The court traced the Petitioner's appointment history: employed as County Legal Officer in 2014, then gazetted as County Attorney by Gazette Notice No. 10187 of 27th November 2020 with no expiry date and no indication of transitional status. Section 31 of the Act deems existing staff to transit, and section 31(3) requires redeployment only where qualifications are not met. The Respondents did not allege he failed the qualifications or Chapter Six. The removal mechanism in section 13 was never invoked, so nominating another person to a filled office was null and void.
What remedies flow from the unlawful nomination
The court issued declarations that the nomination was null and void and that the Petitioner legitimately occupies the office, an injunction restraining removal except under section 13, damages of Kshs 2 million against the 1st Respondent, and costs.
Having found the 1st Respondent acted illegally and in breach of Articles 73 and 232 of the Constitution, the court held the Petitioner entitled to damages for the breach. The injunction protects the incumbent against removal except through the lawful statutory mechanism, mirroring relief (f) sought in the petition.
Legal principles established
#- Where a substantive holder lawfully occupies the office of County Attorney, the Governor cannot nominate another person to the same office without first removing the incumbent under the mechanisms of section 13 of the Office of the County Attorney Act.
- Exercise of authority by a State officer is a public trust that must promote public confidence in the integrity of the office; nomination of a County Attorney while a substantive holder occupies the office offends Article 73.
Court orders
#- 1.Declaration that the nomination of Alice Chepngetich Bett to the position of County Attorney Kericho County was unprocedural, null and void and cannot hold.
- 2.Declaration that Gideon Kipkoech Mutai is legally and legitimately occupying the Office of County Attorney as per Gazette Notice No. 10187 of 27th November 2020.
- 3.Injunction restraining the 1st Respondent from removing the Petitioner from the office of the County Attorney unless acting lawfully under Section 13 of the Office of the County Attorney Act 2020.
- 4.Order that the 1st Respondent pay the Petitioner damages of Kshs 2 million for breach of Article 73.
- 5.Order that the 1st Respondent pay costs of the petition.
- Jurisdiction invoked
- Articles 22, 23 and 258 of the Constitution of Kenya 2010 (enforcement of the Bill of Rights)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Sang v Governor Kericho County & 2 others (Petition E001 of 2023) [2024] KEELRC 1631 (KLR)", Case Analysis (2024). Petition dated 9th February, 2023 (ELRC Kericho). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1631/eng@2024-06-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.