John Muneeni Makau v Charity Kaluki Ngilu, Governor Kitui Government & another [2021] KEELRC 2353 (KLR)
The bottom line
#Kenya's Employment Court ruled that even a county minister cannot be fired without a fair hearing, awarding the ex-CECM about Ksh.1 million in compensation.
What this practically means
#Executive summary
#Key legal issues
#Whether the dismissal of a CECM under section 31(a) of the County Government Act without hearing violated the Constitution
Yes - the dismissal one day after the memo, before any response, was arbitrary, unfair and without due process, violating articles 10, 41, 47, 232 and 259
The County Secretary's memo of 6th February 2020 required an explanation but set no timeline; the petitioner was released from duty the next day. The power under section 31(a), though discretionary, must be exercised reasonably and not arbitrarily per Court of Appeal authority. No County Assembly resolution supported reliance on section 40(1), making its application of no consequence.
Whether the Employment Act procedures were complied with in the summary dismissal
No - no evidence of compliance with sections 35, 41 and 43; the termination was unfair under section 45 and remedies under section 49 available
Section 44 summary dismissal is subject to section 41(2) notice and hearing before a fellow employee; no such evidence existed and no exceptional circumstances were demonstrated. Section 43 requires valid reasons plus due process. The total failure to comply with the Act heavily impinged on the petitioner's constitutional protections.
What remedies flow from the unfair termination
Three months' salary as compensation (Ksh.787,500), one month's notice pay (Ksh.262,500), and tabulation of leave days, taking into account the petitioner's conduct under section 45(5)(e)
Considering the petitioner's conduct, including the unauthorised trip and the accident, and applying section 45(5)(e) read with section 49, three months' salary was appropriate. Constitutional damages were refused as duplicative. Future-tied allowances and gratuity failed for want of justification; leave pay to be tabulated on basic salary.
Legal principles established
#- A Governor's power under section 31(a) of the County Government Act to dismiss a CECM must be exercised reasonably, not arbitrarily, and due process requiring a fair opportunity to be heard is imperative before dismissal
- Section 41 of the Employment Act is mandatory; summary dismissal under section 44 is subject to notice and hearing under section 41(2), and failure to comply renders the termination unfair under section 45
Court orders
#- 1.Compensation awarded at ksh.787,500
- 2.Notice pay at ksh.262,500
- 3.Leave days shall be tabulated at the shop floor for the period ending 7th February, 2020
- Jurisdiction invoked
- Article 22 and 23 of the Constitution of Kenya 2010; Section 12 of the Employment and Labour Relations Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "John Muneeni Makau v Charity Kaluki Ngilu, Governor Kitui Government & another [2021] KEELRC 2353 (KLR)", Case Analysis (2021). Petition No. 23 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/2353/eng@2021-01-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.