The conduct of an employer, of hiring a private investigate to look into an employee’s private life, infringed on the employee’s right to privacy.
Headnote: one of the glaring contested issues was whether an employer could hire a private investigator to look into the private life of an employee. The court held that the conduct of the respondent leading into the investigations of the claimant’s private life in the context of matters ongoing at the workplace was not justified. No basis was given for such conduct. Engaging in private investigations and then failing to bring such matters to the claimant to address as an employee was not justified. His constitutional rights under Article 31 were breached by the respondent.

Mwangi v ABSA Bank Kenya PLC (Cause E065 of 2023) [2024] KEELRC 2399 (KLR) (1 October 2024) (Judgment)
Neutral citation: [2024] KEELRC 2399 (KLR)
Employment and Labour Relations Court at Mombasa
M Mbarũ, J
October 1, 2024
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Employment Law – employer-employee relationship – termination of employment – grounds for termination of employment – claim that employee’s actions amounted to lapse in fiduciary duty and conflict of interest – whether the termination of an employee on grounds that employee’s actions amounted to lapse in fiduciary duty and conflict of interest, was proper and justified – Employment Act (Cap 226), sections 35, 41, 43 and 45
Constitutional Law – fundamental rights and freedoms – the right to privacy – the right to privacy of a person during investigation – collection of personal data unrelated and information unrelated to an employee’s employment – where an employer hired a private investigator to collect personal data and information of an employee – whether the conduct of an employer that led to the investigation of the claimant’s private life in the context of matters ongoing at the workplace was justified – whether an employer could hire a private investigator to look into the private life of an employee – Constitution of Kenya, article 31
Jurisdiction – jurisdiction of the employment and labour relations court – jurisdiction to determine an issue of defamation arising within a claim for wrongful termination – claim that a claim for defamation was not within the jurisdiction of the Employment and Labour Relations Court – whether the Employment and Labour relations court had jurisdiction to determine a claim for defamation, arising in a suit on wrongful termination.

Brief Facts
The respondent bank employed the claimant as a branch manager and then promoted him to a senior branch manager. On March 17, 2023, the claimant was issued with a notice of suspension. The suspension was because the claimant was involved in irregular unauthorized overdraft facilities advanced to some customers at the Nkrumah Road branch. Disciplinary proceedings commenced and upon conclusion, the claimant was issued with a letter of termination. The claimant was allowed a right of appeal.
The claim was that before the claimant’s appeal could proceed for hearing, the respondent advertised for his position meaning that there was a premeditated position that he would not be successful. That resulted in unfair and unlawful termination of employment contrary to Sections 41, 43 and 44 of the Employment Act. The claim was that the claimant’s employment was terminated on grounds of nepotism and a witch hunt against him for raising questions touching on three senior employees who castigated and victimized him as per his email to the CEO. During the claimant’s suspension, the respondent engaged a private investigator into his personal and private conduct and followed him in public, restaurants and pubs and also demanded to be supplied by different establishments with information in violation of his rights. That was contrary to the Constitution and the Employment Act; and had placed the claimant in public ridicule from reports circulated to the claimant’s subordinates and the general public.
According to the claimant, while the claimant was the senior branch manager at Nkrumah Road, the branch realized a net profit of Ksh.1.2 billion for the year 2022 and owing to the said realized profits, he was entitled to a performance bonus of Ksh.2.3 million which the respondent deliberately failed to pay and instead levelled malicious accusations in an attempt to avoid paying the bonus. The claim was that the claimant worked for the respondent while earning a salary of Ksh.572, 760 per month which was to be increased to Ksh.647, 218 (13% increment) from January 2023. The respondent declined to effect the said increment and the same should be awarded. The claimant stated that the termination of employment was without due process, the respondent has refused to pay terminal dues and the claimant was seeking the following; damages for defamation Ksh.5,000,000; damages for character assassination Ksh.5,000,000; unpaid bonuses for the year 2022 ksh.2,300,000; 12 months compensation Ksh.7,766,625.60; Notice pay Ksh.647,218; Unpaid salary increments at 13% from January 2023 to May 2023 Ksh.373,294; Certificate of service; and costs.
Issues
  1. Whether the termination process followed by the employer was flawed hence constitution wrongful/unlawful termination
  2. Whether the Employment and Labour relations court had jurisdiction to determine a claim for defamation, arising in a suit on wrongful termination
  3. Whether an employer could hire a private investigator to look into the private life of an employee
  4. Whether an employee was entitled to bonus that accrued and were awarded to him, for good performance, before the disciplinary proceedings were initiated.
  5. Whether an employee undergoing disciplinary proceedings was entitled to a salary increment awarded to all employees as part of implementation of the employer’s Policy.
Held:
  1. Termination of employment was allowed under the provisions of sections 35, 41, 43 and 45 where the employer issued notice upon the employee noting misconduct on the grounds of poor work performance, incapacity or capability. Upon the notice, the employee must be allowed time to the respondent and attend to make his representations.
  2. The banking sector was sensitive and highly regulated through its policies and the Central Bank of Kenya. Breach of fiduciary duty extended to third party and the conduct of the claimant justified the sanction taken and termination of employment. Similarly, certain positions such as a branch manager of a bank, attract a high calling of integrity and financial probity. Once held, great responsibility and accountability was called for. As the branch manager, of the Nkrumah Road branch, Mombasa, the claimant had bigger accountability beyond what his junior staff held.
  3. The respondent bank was finance-sensitive and the position held by the claimant as branch manager was similar to that of a financial custodian and other valuables. Conflict of interest and lapse in the fiduciary duty bestowed on him was capable of affecting the financial position of the respondent and such breach and violation was capable of initiating fraudulent transactions.
  4. The claimant was called to account for his conduct and his responses were found unsatisfactory. He admitted to buying a housing unit from a customer without a proper sale agreement which was in conflict of interest and to failing to address irregularities concerning the allocation of excesses within his branch which was in breach of the lending procedures. The claimant was invited to a disciplinary hearing and failed to explain his conduct and hence found culpable of misconduct leading to termination of employment. The termination of employment was justified and the claimant was taken through due process.
  5. In Employment Law defamation took place when the Employer publicizes or causes to be publicized, statements which stigmatize the employee. The manner of dismissal and the negative publicity attached to the petitioner had the potential to damage his employability. In employment-related, defamation was based on the old tort of defamation but with a new spin: the employee’s injured or damaged employability and not merely the personal stigmatization must be compensated.
  6. Breach of privacy was contrary to Article 31 of the Constitution. Even in employment, protection of the employee privacy was imperative. Where there was a breach of an employee's privacy, an employer could not justify a position that the court lacked jurisdiction and then fail to address whether there was a need to collect personal data and information unrelated to the employment.
  7. Protecting privacy was necessary if an individual was to lead an autonomous, independent life, enjoy mental happiness, develop a variety of diverse interpersonal relationships, formulate unique ideas, opinions, beliefs and ways of living and participate in a democratic, pluralistic society. The importance of privacy to the individual and society certainly justifies the conclusion that it was a fundamental social value, and should be vigorously protected in law. Each intrusion upon private life was demeaning not only to the dignity and spirit of the individual but also to the integrity of the society of which the individual is part.
  8. The conduct of the respondent leading into the investigations of the claimant’s private life in the context of matters ongoing at the workplace was not justified. No basis was given for such conduct. The claimant was a senior employee of the respondent and whatever conduct he engaged in after office/work hours, where that was found contrary to his letter of appointment and workplace policy, recourse was to invite him to address. Engaging in private investigations and then failing to bring such matters to the claimant to address as an employee was not justified. His constitutional rights under Article 31 were breached by the respondent.
  9. In employment and labour relations, damages could be awarded to an employee under the provisions of Section 12 of the Employment and Labour Relations Court Act. The demands of social justice must be weighed carefully, against the needs of economic development. Ultimately, the purpose of compensatory awards was not to punish errant employers, however egregious their decisions against their employees be; the objective was to ensure economic injury suffered by the employee, was adequately redressed.
  10. The claimant had served the respondent well until matters were brought to his attention through notice to show cause dated March 17, 2023. Internal investigations conducted revealed various breaches but that did not justify a violation of his privacy rights secured under Article 31 of the Constitution. The facts weighed and similar case law addressed, general damages claimed at ksh.5, 000,000 was justified.
  11. The policies applied by the respondent must protect both parties equally. On the one part, the subject policy required that upon the close of year, each employee enjoying a bonus for good performance should receive communication from the Regional Manager which the claimant received, stating that following his excellent performance, he had earned a bonus. That was related to the year 2022 way before disciplinary proceedings were brought to the claimant’s attention. The announced bonus could not be negated after the fact of its communication. Disciplinary procedures were only initiated against the claimant through the notice to show cause dated March 17, 2023. Going back to sanction him and deny him a benefit accrued backwards and relating to his performance in the year 2022 was to engage in unfair labour practices. The claimant was entitled to the claim of Ksh.2, 300,000 in unpaid bonuses for the year 2022.
  12. On the claim for salary increments at 13% from January 2023 to May 2023, the discretion not to award such payment upon the respondent was removed the moment a policy was issued that was known to all employees that such percentages were due. From March to May 2023 during the disciplinary process, the claimant was not in control of his employment. The time taken to address the workplace misconduct should not deny him the due benefits while employment subsisted. Submissions by the respondent that the salary increase was purely discretionary vis-a-vis the records and policies placed before the court were not correct.
  13. Employment rights can be secured contractually, through workplace policies and practices and agreements. The claim of a 13% salary increase from January to May 2023 was justified at Ksh.647, 218. On the Certificate of Service, best practice demanded that the employee should be cleared and the same issued under the provisions of Section 51 of the Employment Act.
Claim allowed.
Orders
  1. A declaration that there was a violation of constitutional rights;
  2. General damages Ksh.5,000,000;
  3. Unpaid bonuses for the year 2022 ksh.2,300,000;
  4. Notice pay Ksh.647,218;
  5. Unpaid salary increments at 13% from January 2023 to May 2023 Ksh.373,294;
  6. The claimant to complete clearance for issuance with a Certificate of Service;
  7. Each party bears its costs.
Kenya Law
Case Updates Issue 019/2024-2025
Case Summaries  
   
COMMERCIAL LAW Holders of floating charges, which pre-date the coming into force of the Insolvency Act, in respect of company property can appoint administrative receivers

Headnote: The 2nd to 5th respondents had advanced various banking facilities to the appellant secured by debentures, both fixed and floating. The appellant defaulted the repayment obligations and the 2nd to 5th respondents thus appointed a receiver manager of the appellant. The court noted that section 690 of the Insolvency Act on appointment of administrative receiver in respect of company prohibited did not apply to the holder of a floating charge that was created before the commencement of the section or to an appointment of an administrative receiver made before that commencement. Further, section 690(4) preserved the rights of debenture holders and charges to appoint a receiver/manager, provided the debenture or charge was created before September 5, 2003.

Athi River Steel Plant Limited v Rao & 4 others (Civil Appeal 592 of 2019) [2024] KECA 585 (KLR) (24 May 2024) (Judgment)
Court of Appeal at Nairobi
MA Warsame, S Ole Kantai & PM Gachoka, JJA
May 24, 2024
Reported by Kakai Toili

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Commercial Law - insolvency – administrative receivers - appointment of administrative receivers - whether the holder of a floating charge in respect of a company's property, which pre-dated the coming into force of the Insolvency Act, could appoint an administrative receiver of the company - Insolvency Act (cap 53), section 690 and 734(2).

Brief facts:
The 2nd to 5th respondents advanced various banking facilities to the appellant between 2010 and 2014. Those facilities were secured by debentures, both fixed and floating, and charges over parcels of land owned by the appellant, all executed by the appellant in favour of the 2nd to 5th respondents. The appellant defaulted the repayment obligations. On or about May 18, 2018, the 2nd to 5th respondents appointed the 1st respondent as receiver manager of the appellant under a deed of appointment. On May 28, 2018, they issued a notice of appointment of receiver and manager under the repealed Companies Act. Thereafter, the 1st respondent took possession and control of the appellant’s premises, assets and equipment, which according to the appellant occasioned a shutdown of its business and operations.
The situation prompted the appellant to file an insolvency cause challenging the appointment of the 1st respondent and seeking orders essentially nullifying the appointment and restraining the respondents from selling or otherwise disposing of the appellant’s properties. The appellant also sought liberty for its Board of Directors to propose a voluntary arrangement with its creditors and to appoint a supervisor to oversee the same under the provisions of the Insolvency Act, 2015. The High Court was satisfied that the appointment of the 1st respondent was within the terms of the contract and also to a large extent in compliance with the Insolvency Act.
Since the debenture was duly registered, the High Court found that the documents on which the right to appoint a receiver/manager of the appellant was founded were valid. The court issued among other orders that the applicant company’s board of directors be at liberty to propose a voluntary process as provided in the Insolvency Act, 2015; and that the appointment made by the 2nd – 5th respondents would not be revoked as it was sanctioned under the debenture and floating charges. Aggrieved, both the appellant and the respondents moved to the instant court. The appellant was dissatisfied with the entire ruling and the respondents appeal was limited to the part of the decision that allowed prayer (e) and declining to award them cots of the suit.

Issues:

  1. Whether the holder of a floating charge in respect of a company's property, which pre-dated the coming into force of the Insolvency Act, could appoint an administrative receiver of the company Read More..

Held :

  1. As an appellate court exercising jurisdiction under article 164(3) of the Constitution and section 3(1) of the Appellate Jurisdiction Act, the court’s mandate as a first appellate court was to re-evaluate the evidence and make its own findings. That mandate was encapsulated in rule 31 of the Court of Appeal Rules 2022.
  2. The indebtedness of the appellant to the 2nd to 5th respondent was not in issue. It was also not in issue that the facilities were secured by debentures and charges which allowed the appointment of a receiver and that the debenture instruments were entered into prior to the commencement of the Insolvency Act. The 2nd to 5th respondents appointed the 1st respondent as a receiver and/or manager. The point of departure between the parties was the lawfulness or basis of the appointment of the receiver and the remedies that were granted by the High Court.
  3. It could not be ignored and any starting point for appointment of a receiver or receiver and manager was the existence of an act of default for repayment of an amount that was due and owing. Colossal amounts were advanced to the appellant. Among the securities offered to secure the advance were debentures as well as charges over properties. The debentures were registered and the High Court upheld the validity of the charge created thereunder. At any rate, the validity of the securities was not in issue, as no appeal had been made in that regard. At that point, it could only mean that the first port of call was the contracted position between the parties. The courts could not rewrite a contract between the parties. If anything, it was on the court to not only apply but also uphold the terms of the contract.
  4. Clause 13 of the debenture afforded the 2nd to 5th respondents, the power to appoint a receiver and manager. The long title of the Insolvency Act 2015 as replicated in the objects indicated that the Act was meant to inter alia to amend and consolidate the law relating to the insolvency of natural persons and incorporated and unincorporated bodies.
  5. Section 734(2) of the Insolvency Act 2015 provided that despite the repeal of the Companies Act, or of Parts VI to IX of that Act, those Parts, and any other provisions of that Act necessary for their operation, continued to apply, to the exclusion of the Insolvency Act, to any past event and to any step or proceeding preceding, following, or relating to that past event, even if it was a step or proceeding that was taken after the commencement. Among the past events was the inability by the company to pay debts which was applicable to the instant situation, the debt behind the appointment of the receiver having accrued as at June 2017 and the Insolvency Act having come into effect on January 18, 2018.
  6. Section 690 of the Insolvency Act provided that an administrative receiver in relation to a company, meant; a receiver or manager of the whole (or substantially the whole) of the company's property appointed by or on behalf of the holders of any debentures of the company secured by a charge which, as created, was a floating charge, or by such a charge and one or more other securities. It also meant the holder of a floating charge in respect of a company's property could not appoint an administrative receiver of the company. Section 690 did not apply to the holder of a floating charge that was created before the commencement of the section or to an appointment of an administrative receiver made before that commencement.
  7. Nothing turned on whether the appointment of the receiver was based on the provisions of the debenture or under the Insolvency Act. The attack on the lawfulness of the appointment of a receiver was at best a smokescreen and it would not address the indebtedness of the appellant to the 2nd to 5th respondents.
  8. It was expected that once a receiver and manager was appointed, he or she was expected to take over the control of the affairs of the company.
  9. The application being predicated on the imminent sale of the assets of the properties, the same was not backed by evidence. Sale of properties had to be undertaken within certain rigorous steps, none of which had occurred. The 1st respondent conceded that it had some negotiations on the sale of some of the assets but the sale did not materialize.
  10. A receiver once appointed had some obligations which under the Insolvency Act were fiduciary in nature for the benefit of both the creditors and the company itself. Directors had continuing powers and duties which included proposing a voluntary arrangement with the appellant’s creditors and to appoint a supervisor.
  11. All the debentures executed by the parties therein, pre-dated January 18, 2016, which was the date when the insolvency Act came into force in Kenya. There was a default, by the appellant, in the repayment obligations. The appellant did not dispute that it was indebted to the 2nd to 5th respondents. The appellant sought and was unable to obtain several reliefs, including, to bar the 1st respondent from acting or continuing to act as a receiver manager, or order barring or nullifying any sale of assets.
  12. The appointment of receiver and manager or administrator was an integral part of the contractual enforcement mechanism included, the appointment of a receiver/manager over the assets, properties and business of the appellants. That was an integral contractual agreement between the parties hence parties were bound by their decisions. Section 690(4) of the Insolvency Act, 2015 expressly allowed the holders of a floating charge, which pre-dated the coming into force of the Insolvency Act, January 18, 2016. That section preserved the rights of debenture holders and charges to appoint a receiver/manager, provided the debenture or charge was created before September 5, 2003. The receiver/manager/administrator was appointed on May 24, 2018 making it within the purview and powers of section 690(4) of 2015.

Appeal dismissed with costs.
DEVOLUTION Declaration of a vacancy and advertisement for recruitment of a replacement for the clerk of a county assembly seconded to the county executive violates the clerk’s rights to fair labour practices and fair administrative action

Headnote: The petitioner held the positions of Clerk of the Laikipia County Assembly and the secretary to the Laikipia County Assembly Service Board (the 2nd respondent) on permanent and pensionable terms. He was seconded to the County Executive to serve as the Acting Municipal Manager Nanyuki and the Governor of Laikipia County seconded a chief officer to serve as the Acting Clerk. The court pointed out the procedure for the removal of a clerk of a county assembly. The court further noted that the office of the clerk was not rendered vacant by the secondment of the petitioner to the county executive and that the actions by the respondents violated the petitioner’s rights to fair labour practices and fair administrative action.

Mutuiri v Speaker, Laikipia County Assembly & another (Employment and Labour Relations Petition E012 of 2023) [2024] KEELRC 680 (KLR) (15 March 2024) (Judgment)
Employment and Labour Relations Court at Meru
ON Makau, J
March 15, 2024
Reported by Kakai Toili

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Devolution – county assemblies – clerk of county assemblies - procedure for the removal of a clerk of a county assembly from office - whether the secondment of the clerk of a county assembly to the county executive rendered the position of clerk vacant – County Assembly Services Act (cap) 265D, sections 22 and 23; Employment Act (cap 226), section 45.
Constitutional Law – county assemblies – clerk of county assemblies - procedure for the removal of a clerk of a county assembly from office - whether the secondment of the clerk of a county assembly to the county executive rendered the position of clerk vacant – County Assembly Services Act (cap) 265D, sections 22 and 23; Employment Act (cap 226), section 45.
Constitutional Law – – doctrine of separation of powers - doctrine of separation of powers in county governments – county assemblies vis a vis county executives - whether it was contrary to the doctrine of separation of powers to second officers from one arm of a county government to the other - whether a county chief officer could be seconded to act as a county assembly clerk where the substantive clerk had been seconded to the county executive – Constitution of Kenya, articles 176 and 185; County Assembly Services Act (cap) 265D, section 26.

Brief Facts:
The petitioner was the Clerk of the Laikipia County Assembly (the County Assembly) and the secretary to the Laikipia County Assembly Service Board (the 2nd respondent). He held the two offices on permanent and pensionable terms. The petitioner averred that he was seconded to the County Executive to serve as the Acting Municipal Manager Nanyuki and that the Governor of Laikipia County Government seconded a chief officer (the Chief Officer) to the County Assembly to serve as the Acting Clerk. The petitioner stated that the actions by the respondents to second him to the County Executive was malicious, illegal and irregular. The petitioner believed that the respondents’ motive for seconding him to the County Executive was to, among others, instigate his termination and/or removal from office.
The petitioner claimed that on October 19, 2023, despite the express terms of the secondment, the respondents advertised vacancy in the office of the Clerk Laikipia County Assembly and invited applicants for recruitment. The petitioner thus stated that the action meant that there was intention to replace him while he was still in employment on permanent and pensionable terms and thereby terminate his employment. The petitioner thus sought for among other orders; a declaration that the purported declaration of vacancy and the advertisement for the recruitment to fill the position of Clerk, Laikipia County Assembly by the respondents when the position was not vacant was a violation of his constitutional rights.

Issue:

  1. What was the procedure for the removal of a clerk of a county assembly from office?
  2. Whether the secondment of the clerk of a county assembly to the county executive rendered the position of clerk vacant.
  3. Whether the declaration of vacancy and advertisement for recruitment of another person to replace the clerk of a county assembly who had been seconded to the county executive violated the rights to fair labour practices and fair administrative action.
  4. What was the distinction between fair labour practices and fair administrative action.
  5. Whether a county chief officer could be seconded to act as a county assembly clerk where the substantive clerk had been seconded to the county executive.
  6. Whether it was contrary to the doctrine of separation of powers to second officers from one arm of a county government to the other. Read More..

Relevant provisions of the law

Constitution of Kenya
Article 236 - Protection of public officers
A public officer shall not be—
(b) dismissed, removed from office, demoted in rank or otherwise subjected to disciplinary action without due process of law.

Held :

  1. The petition disclosed a reasonable cause of action founded on violation of the Constitution. The court was clear on the provisions of the Constitution which were alleged to be violated, and the manner in which the violation had been done. Consequently, the petition met the competence threshold for a constitution petition.
  2. Section 23 of the County Assembly Services Act stipulated the procedure to be followed before the removal of the clerk was done. The procedure included;
    1. framing the charges and serving the clerk;
    2. inviting the clerk to respond to charges in writing;
    3. inviting the clerk to appear before the board either in person or with an advocate, to exculpate himself/herself;
    4. submission of a motion to the assembly for revocation of appointment of the clerk;
    5. reference to a select committee for investigation;
    6. appearance of the clerk before the select committee;
    7. the assembly considered the report of the select committee and approved the motion for removal.
  3. The respondents had not disputed that the petitioner was the substantive Clerk of the Laikipia County Assembly on a permanent and pensionable basis. They had also not rebutted the petitioner’s evidence that he had not resigned, retired or been removed from office under section 22 and 23 of the County Assembly Services Act. The petitioner was just seconded to the County Executive for three years to assist in establishing Nanyuki Municipality with the option of returning to his substantive position of Clerk of the County Assembly.
  4. The office of the Clerk Laikipia County Assembly was not rendered vacant by the secondment of the petitioner to the County Executive in May 2023. The declaration of vacancy and advertisement for recruitment of another person to replace the petitioner as the Clerk of the County Assembly violated section 45 of the Employment Act by purporting to terminate the employment of the petitioner without any valid reason and without following a fair procedure. The declaration of the vacancy was therefore uncalled for, illegal, irrational, null and void because it was an attempt to remove him from office contrary to article 236(b) of the Constitution.
  5. The actions by the respondents were contrary to law and without jurisdiction they actually violated the petitioner’s rights to fair labour practices and fair administrative action as guaranteed under article 41 and 47 of the Constitution. Fair labour practices in common parlance referred to practices that affected inter alia, hiring, promotions, transfers, suspension, disciplinary actions, terminations and reassignments. On the other hand, fair administrative action referred to the obligation on the part of a decision maker to act fairly. Section 2 of the Fair Administrative Action Act defined administrative action.
  6. Section 26 of the County Assembly Services Act was clear that in case of the absence of the clerk, the deputy clerk shall act as the clerk and in the event of the absence of the deputy clerk, any other officer of the county assembly service may be appointed by the board to act as the clerk. In the instant case, when the petitioner was seconded to the county executive, the right person to act as clerk of the County Assembly and the secretary of the 2nd respondent ought to have been the deputy county assembly clerk. It had not been shown that there was no deputy clerk in Laikipia County Assembly and that he/she was absent or unable to perform the duties of the clerk.
  7. The secondment of a chief officer from the county executive to act as the clerk of the county assembly was not only ultra vires but also uncalled for, illegal, irrational and outrightly unconstitutional. The decision and the action of seconding the Chief Officer to the County Assembly to act as the clerk was therefore intended to remove the petitioner from the office of the clerk and create a mongrel of County Government contrary to the established doctrine of separation of powers.
  8. The county assembly and the county executive were separate and distinct arms of the County Government established under article 176 of the Constitution. The former enjoyed the legislative authority in the county by dint of article 185 of the Constitution and its functions included oversighting the county executive. The county executive on the other hand enjoyed the executive powers in the county including administration and coordination of government functions.
  9. It was untidy and contrary to the constitutional principle of separation of powers to purport to second officers from one arm of county government to the other. It was even worse where such secondments contravened an express provision of the law like section 26 of the County Assembly Services Act. Violation of such clear provision of the statute amounted to a violation of the national values and principles of good governance, and the values and principles of public service. The purported consent by the petitioner to the terms of secondment was immaterial because a contract could not amend express provision of the law.
  10. Public officers, public organs and institutions of Government were bound to observe the national values and principle of good governance while exercising their mandate. They were also bound to observe the values and principles of public service when dealing with issues of employment in the public service. If they failed to do so, the court would readily invoke its jurisdiction to declare the supremacy of the Constitution over the inconsistent decisions and actions by public officers and public organs.
  11. The declaration of vacancy in the petitioners’ substantive position while serving a temporary secondment in the County Executive, was irregular, illegal, irrational and contrary to section 45 of the Employment Act, section 22 and 23 of the County Assembly Services Act, and section 4 of the Fair Administrative Action Act. Consequently, the same was unconstitutional for being inconsistent with article 41, 47 and 236(b) of the Constitution. It was also a violation of the values and principles enshrined under article 10 and 232 of the Constitution.

Petition partly allowed..
Orders

  1. In view of the petitioner having not resigned, retired or been removed from his office as the Clerk of the Laikipia County Assembly, the court made a declaration that the petitioner was and had been the duly appointed Clerk of the Laikipia County Assembly Service Board/ Laikipia County Assembly and could only be removed from Office in accordance with the provisions of sections 22 and 23 of the County Assemblies Act.
  2. The purported declaration of vacancy and the advertisement for the recruitment to fill the position of Clerk, Laikipia County Assembly by the respondents as advertised in the newspapers (both print and electronic) on October 19, 2023, when the position was not vacant was a violation of the petitioner’s constitutional rights protected under articles 41(1), 47 and 236 of the Constitution and statutory rights protected under the provisions of sections 23, 27(2) and (3) and 30 of the County Assemblies Act; section 5 of Fair Administration Actions Act and section 45 Employment Act.
  3. The court issued an order of certiorari quashing the purported declaration of vacancy and the advertisement for the recruitment for to fill the position of Clerk, Laikipia County Assembly by the respondents as advertised in the newspapers (both print and electronic) on October 19, 2023.
  4. The court issued a permanent injunction restraining the respondents, whether acting directly or through third parties, agents and/or proxies, from illegally or irregularly advertising, interviewing, recruiting, employing, confirming and/or otherwise filling up the position of the Clerk of the Laikipia County Assembly when the petitioner’s contract of employment was still subsisting.
  5. The court made a declaration that the purported decision by the 2nd respondent made on May 17, 2023 vide Minute No. 91/3/2023 to second the petitioner to the County Executive arm of the Laikipia County Government as the acting Municipal Manager - Nanyuki Municipality, and as communicated to the petitioner by the 1st respondent in letter Ref.No. CGL/CA/PF/001/13/31 and dated May 17, 2023, was unlawful, illegal, capricious, arbitrary, malicious, contrived and thereby constituted a violation of the petitioner’s fundamental rights under article 41, 47 and 236 of the Constitution and his employment and other statutory rights.
  6. The court issued an order of certiorari quashing the decision of the 2nd respondent made on May 17, 2023 vide Minute No. 91/3/2023 purporting to second the petitioner to the Executive arm of Laikipia County Government as the acting Municipal Manager of the Nanyuki Municipality and as communicated to the petitioner by the 1st respondent in letter Ref. No. CGL/CA/PF/001/13/31 and dated May 17, 2023.
  7. The court issued a permanent injunction restraining the respondents, whether acting directly or through third parties, agents and/or proxies, from seconding and/or transferring the petitioner from the Laikipia County Assembly Service Board/ Laikipia County Assembly to the Laikipia County Executive/ Laikipia County Public Service Board, and/or otherwise from interfering with the petitioner’s contract of employment as the Clerk of the Laikipia County Assembly.
  8. Based on the doctrine of separation of powers, the court made a declaration that the purported decision of the 2nd respondent approving the appointment of the County Chief Officer for County Co-ordination, Administration, ICT and Public Service to be seconded to the 2nd respondent as the acting Clerk of the Assembly and as communicated by the 1st respondent in letter Ref.No. CGL/CA/CON/02 and dated June 6, 2023 was unlawful, illegal, irregular, arbitrary, contrived and thereby constituted a violation provisions of sections 13 and 45 of the County Governments Act, sections 26 of the County Assembly Services and sections 4, 5, 6,7,8,9 and 11 of the Public Appointments (County Assemblies Approval) Act. The latter provisions barred appointments without approval by county assembly where the approval was required; and they set out the procedure to be followed during the approval process.
  9. The court made a declaration that the decision by the 2nd respondent approving secondment of the County Chief Officer from the County Executive to the County assembly to act as the clerk of the assembly was illegal, irrational, unconstitutional. The right person to act was the Deputy Clerk or any other officer of the County Assembly Service appointed by the 2nd respondent. Therefore, the court issued an order of certiorari quashing that decision.
  10. The court granted the petitioner’s prayer for a finding and holding that the 1st and 2nd respondents had engaged in a malicious scheme of orchestrating the unlawful and unfair termination and/or removal of the petitioner from the Office of the Clerk Laikipia County Assembly.
  11. Judgment entered for the petitioner with costs to be agreed between the parties or taxed.