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ELRCDismissedCause No 2263 of 2015· [2016] KEELRC 74 (KLR)

Tabitha Njambi Chigua & 12 others v County Government of Kiambu [2016] KEELRC 74 (KLR)

Employment and Labour Relations Court
20 December 2016
HWHellen Wasilwa
982 words in judgment
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The bottom line

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Former council workers lost their case against Kiambu County because they sued the wrong body — hiring county staff is the County Public Service Board's job.

What this practically means

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Executive summary

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This Employment and Labour Relations Court decision resolved a preliminary objection dated 18th January 2016 raised by the County Government of Kiambu against claims by former casual employees of the defunct Municipal Council of Ruiru. The Claimants, who worked as casuals between 2012 and 2014 per muster rolls, sought a declaration that their employment was permanent by virtue of Section 37 of the Employment Act, 2007, together with leave allowances and other emoluments, contending that the County Government assumed all obligations of the defunct local authority upon transition and could engage staff on mutually agreed terms. The Respondent objected that under Article 176(1) of the Constitution and Part VII of the County Governments Act, 2012, the mandate to appoint and confirm county staff vests exclusively in the County Public Service Board, a body corporate with capacity to sue and be sued, so the County Government lacked the legal capacity to employ them and the remedies sought could not lie against it. The Claimants countered that the objection was misconceived and that Article 235 on county staffing mandates was not overridden by Sections 55 and 56 of the Act. Justice Hellen Wasilwa examined Sections 56, 57 and 59 of the County Governments Act and held that only the County Public Service Board has the mandate to hire the Claimants. Finding that the Claimants had sued the wrong party, the court upheld the preliminary objection, dismissed the claim against the Respondent with costs on 20th December 2016.

Key legal issues

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01

Whether the County Government of Kiambu is the proper party to employ the Claimants

Holding

No - the County Public Service Board is the body mandated to hire county staff

Reasoning

The court examined Sections 56, 57 and 59 of the County Governments Act, 2012, which establish the County Public Service Board as a body corporate capable of suing and being sued, and empower it to establish and abolish offices and appoint persons to hold or act in offices of the County Public Service, including Boards of cities and urban areas. Reading these provisions, the court concluded that only the CPSB has the mandate to hire the Claimants, so the County Government lacks capacity to employ them or be the proper respondent.

p. 3
02

Consequence of suing the wrong party

Holding

The claim is incompetent and was dismissed with costs

Reasoning

Having found that the remedies sought (declaration of permanent employment and payment of allowances) cannot lie against the County Government, the court upheld the preliminary objection and dismissed the suit rather than ordering joinder or transfer. The objection was considered on its own merits despite the Claimants' submission that it was misconceived and unsupported by any particular law.

p. 3

Legal principles established

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  • The mandate to appoint persons to hold or act in offices in the County Public Service, including Boards of cities and urban areas, vests in the County Public Service Board under Sections 57 and 59 of the County Governments Act, 2012, not in the County Government itself
  • A suit filed against a party without legal capacity to grant the remedies sought is incompetent and will be dismissed on preliminary objection

Court orders

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  1. 1.The Respondent's Preliminary Objection dated 18th January 2016 is allowed
  2. 2.The Claimants' case against the Respondent is dismissed
  3. 3.Costs of the Preliminary Objection awarded to the Respondent

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 176(1)
  • Constitution of Kenya, 2010Article 235
  • Employment Act, 2007Section 37; definition of 'employer'
  • County Governments Act, 2012Sections 55, 56, 57, 59; Part VII
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes; preliminary objection dated 18th January 2016 under Part VII of the County Governments Act, 2012 and Article 176(1) of the Constitution

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Tabitha Njambi Chigua & 12 others v County Government of Kiambu [2016] KEELRC 74 (KLR)", Case Analysis (2016). Cause No 2263 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/74/eng@2016-12-20

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