Mbandu & 6 others v County Government of Kakamega & 2 others (Cause E017 of 2023) [2024] KEELRC 1997 (KLR)
The bottom line
#Seven dismissed Kakamega County finance officers lost their bid for reinstatement because they waited over three years, but each keeps a 12-month salary award from the Public Service Commission.
What this practically means
#Executive summary
#Key legal issues
#Whether the court could reopen the fairness of the claimants' termination determined by the Public Service Commission
The court had no jurisdiction to reopen the issue of fairness of the termination, which had been determined to finality by the Commission and accepted by the Board; only supervisory (judicial review) jurisdiction lay over the quasi-judicial decision
The claimants appealed to the PSC under section 77 of the County Governments Act read with section 85 of the Public Service Commission Act, which heard the appeals on merit and awarded 12 months' compensation. The Board accepted that decision. Requiring the court to hear the dispute afresh would contradict Article 159(2)(c) on ADR and the Karume principle that a prescribed statutory procedure be strictly followed. Judicial review is confined to procedural fairness and lawfulness.
Whether the claimants were entitled to reinstatement instead of the 12 months' compensation awarded
Reinstatement was unavailable: more than three years had lapsed since the December 2020 dismissals, ousting the court's reinstatement jurisdiction, and the claimants' positions of trust as accountants with unresolved questions over transactions made reinstatement inappropriate
The claimants pleaded dismissal letters dated 15th December 2020 and the suit was filed in September 2023, beyond the three-year limit in section 12(3)(vii) of the Employment and Labour Relations Court Act. The court, guided by Kenya Airways Limited v Alex Wainaina Mbugua, held that mutual trust and confidence, lost where an employee faces unresolved financial misconduct questions, makes reinstatement inappropriate; compensation was adequate.
Whether the PSC's decision to award compensation rather than reinstatement should be disturbed
The court was satisfied the Commission's decision was appropriate and upheld it, adopting the compensation decisions as a decree of the court
There was no evidence of malice, ill will or bad faith, and no iota of evidence to justify interference. The Commission had considered both substantive and procedural aspects, found procedural unfairness, exercised its discretion under section 49 of the Employment Act, and gave reasons for not reinstating. The only complaint was the choice of remedy, which fell within the Commission's discretion.
Whether advertisement and filling of the claimants' positions pending appeal invalidated the process
Since an appeal or review before the Commission does not suspend implementation of a decision under section 88(4) of the Public Service Commission Act, the post-termination advertisement of the positions was lawful
Section 88(4) expressly provides that implementation of a decision shall not be deferred or suspended pending appeal or review. The court therefore held that the alleged advertisement of the positions previously held by the claimants after termination was lawful, rejecting the claim of premeditation and predetermination.
Legal principles established
#- Where an administrative remedy has been exhaustively pursued and determined by a body clothed with jurisdiction, the court has no jurisdiction to reopen the merits and can only exercise supervisory jurisdiction
- The Employment and Labour Relations Court may only order reinstatement within three years of dismissal
- Reinstatement is not an automatic remedy; it is discretionary and depends on factors such as position of trust and practicability
- An appeal or review before the Public Service Commission does not stay or suspend implementation of the impugned decision
Court orders
#- 1.The Claim dated 13th September 2023 is dismissed
- 2.The decisions of the Public Service Commission on compensation of the claimants pursuant to section 89 of the Public Service Commission Act are adopted as Decree of the Court
- 3.The monies to be paid with interest at court rates from the date of the Decree until payment in full
- 4.Each party to bear own costs
- 5.Right of appeal
- Jurisdiction invoked
- Article 162(2)(a) of the Constitution (Employment and Labour Relations Court); PSC decision enforceable under section 89 of the Public Service Commission Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mbandu & 6 others v County Government of Kakamega & 2 others (Cause E017 of 2023) [2024] KEELRC 1997 (KLR)", Case Analysis (2024). Cause No E017 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1997/eng@2024-07-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.