Rono v County Government of Kericho & 2 others (Civil Appeal 215 of 2018) [2023] KECA 310 (KLR)
The bottom line
#The Court of Appeal ruled that a Kericho CEC member never substantively reappointed after the 2017 election had no protection against losing her job.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the appellant was a substantive CEC Member of the County Government of Kericho as at May 4, 2018
- 2.Whether the appellant was unfairly dismissed
- 3.Whether the appellant is entitled to the reliefs sought
- 4.Who should bear the costs of the appeal
Key legal issues
#Whether the appellant was a substantive CEC Member as at May 4, 2018
She was not. Her tenure ended with the 2017 general election process; the County Assembly declined to approve her nomination, and the lapse of 21 days under Section 42(2) did not confer a substantive appointment. She could only have been serving in an acting capacity.
Sections 42(1) and (2) of the County Governments Act and Sections 2 and 4 of the Public Appointments (County Assemblies Approval) Act, 2017 require that appointments of CEC members be approved by the county assembly. The Kericho County Assembly declined to approve the appellant's nomination, and she produced no evidence of appointment after the 2017 election. Without those prerequisite steps, the lapse of 21 days could not confer a substantive appointment; she served in an acting capacity only.
Whether the appellant was unfairly dismissed
This issue fell away: there was no removal or dismissal of a substantive appointee, so the Governor's letter asking her to hand over was a proper executive action.
Having found the appellant was never substantively appointed after the 2017 election, the court held the authorities on dismissal of validly appointed CEC members were distinguishable. The Governor correctly exercised his mandate in asking her to hand over the office, and the trial Judge properly found this was not a case of removal or dismissal.
Whether the appellant is entitled to the reliefs sought
No. Without a substantive appointment and proof of unfair dismissal or rights infringement, no relief could issue.
The court agreed with the learned Judge that once there was no unfair dismissal because there was no appointment, there was no basis for awarding the reliefs. The appellant did not prove any infringement of her rights or unconstitutional conduct to her detriment; quantification of awards would only arise if substantive appointment and illegal removal were proved.
Costs of the appeal
Deviation from the general rule that costs follow the event; each party to bear own costs of the appeal.
Guided by the Supreme Court's dictum in Jasbir Singh Rai, the court exercised its discretion under Rule 33 of the Court of Appeal Rules, 2022, noting the first respondent is a publicly financed constitutional body, both respondents shared one counsel, and the appellant ceased being a CEC member in 2018, warranting departure from the costs-follow-the-event rule.
Legal principles established
#- After a general election, an existing CEC member's tenure terminates upon appointment of new CEC members; a person not reappointed and not approved by the County Assembly serves, if at all, only in an acting capacity and cannot claim removal or dismissal protections
- An appointment requiring county assembly approval cannot be made without that approval, and the lapse of the 21-day period under Section 42(2) of the County Governments Act does not by operation of law confer a substantive appointment
- Case law on dismissal of validly appointed CEC members under Section 31(a) of the County Governments Act is distinguishable where the person was never substantively appointed
Court orders
#- 1.The appeal is dismissed
- 2.The parties to bear their own costs of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Employment and Labour Relations Court, Kericho
- Petition No 3 of 2018
- Jurisdiction invoked
- First appellate jurisdiction under the Court of Appeal Rules, 2022, Rule 31(1)
Relief refused
#All reliefs sought in the appeal (set aside of judgment, certificate of service, salary/terminal dues, twelve months' gross salary for unfair termination)
The appellant was not a substantive CEC member at the time of the alleged dismissal; no unfair dismissal or infringement of rights was proved
Costs
The parties to bear their own costs of the appeal.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Our understanding of Section 42(1) is that the tenure of an existing CEC member terminates upon appointment of new members following a general election.
In the absence of those pre-requisite steps in the journey to appointment, the lapse of the 21 days period could not confer on the appellant a substantive appointment.
These decisions are therefore distinguishable from the circumstances of the present appeal where the appellant was not a substantive CEC member at the time of her alleged dismissal by the 2nd respondent.
It is therefore our finding that the appellant is not entitled to any relief as she did not prove any infringement of her rights or an act of unconstitutional nature which was to the detriment of her interests and wellbeing.
The upshot of the foregoing is that this appeal is without merit and is hereby dismissed. The parties to bear their own costs of the appeal.
Issues in the judgment
#The judgment cites Richard Bwogo Birir with two different years of citation ([2014] eKLR by the appellant and [2015] eKLR by the court when distinguishing it), and the court notes the distinguished decision was relied on by both parties
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Rono v County Government of Kericho & 2 others (Civil Appeal 215 of 2018) [2023] KECA 310 (KLR)", Case Analysis (2023). Civil Appeal (Kericho) – Petition No 3 of 2018 appeal. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/310/eng@2023-03-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.