Zakayo & 3 others v Kitui County Public Serivice Board & 2 others; Kitui County Assembly (Interested Party) (Petition E212 of 2022) [2023] KEELRC 1722 (KLR)
The bottom line
#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 petitioners were employed on permanent and pensionable terms or on fixed term contracts
- 2.Whether the advertisement of vacancies, shortlisting and interviewing of candidates for Chief Officer positions was unlawful
- 3.Whether the letter dated 21st October 2022 notifying petitioners of imminent expiry of employment contracts was illegal and unconstitutional
- 4.Whether the petition raised constitutional questions warranting the cited constitutional provisions
- 5.Whether the court had jurisdiction in the absence of an appeal to the Public Service Commission under Section 77 of the County Government Act
Key legal issues
#Nature of the petitioners' terms of service - permanent and pensionable vs fixed term
The petitioners were on fixed term contracts coterminous with the appointing Governor's term, not permanent and pensionable terms; the new Governor acted lawfully in notifying them of the expiry of their contracts to enable him to constitute his government
The letters of appointment did not comply with the Human Resource Manual's requirements for pensionable appointments (probation, confirmation). The Manual's clause 3.19 contemplated contract appointments at senior levels. The appointment process under Section 45 of the County Governments Act is largely political, with Governors reconstituting governments each election cycle. The petitioners' own act of applying for the advertised positions suggested they were unsure of their terms.
Whether the dispute raised constitutional questions requiring precision under Anarita Karimi Njeri
The dispute was an ordinary employment matter adequately covered by the Employment Act; the petitioners did not demonstrate with precision how constitutional provisions were violated
Applying the Anarita Karimi Njeri standard, the court held that citing several constitutional provisions without demonstrating the manner of violation is insufficient. The core dispute was the contested termination of service, an ordinary employment dispute adequately covered by statute.
Exhaustion of remedies - appeal to the Public Service Commission
The petition may have been prematurely filed since no appeal to the Public Service Commission was made before moving the court, as required under Section 77 of the County Government Act read with the Public Service Act
Section 77 of the County Government Act read with Section 86 of the Public Service Act requires an aggrieved person to appeal to the Public Service Commission before approaching the court. No such appeal was presented, depriving the court of jurisdiction.
Legal principles established
#- The process of appointing county chief officers is largely a political process vested in the Governor with approval of the County Assembly, and new Governors may lawfully decline to retain chief officers who served under their predecessors where appointments are coterminous with the Governor's term
- A letter of appointment that does not specify duration, probation or confirmation provisions, and whose terms are unclear, may not qualify as an appointment on permanent and pensionable terms under the applicable human resource manual
Court orders
#- 1.The petition is dismissed in its entirety
- 2.No orders as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Constitution of Kenya, 2010; Employment and Labour Relations Court jurisdiction over employment and constitutional petitions relating to employment
Relief refused
#All prayers (a), (b), (c), (d), (e), (f), (g), (h), (i), (j), (k), (l), (m), (n) and (o) of the petition
The court held the petitioners were on fixed term contracts coterminous with the Governor's term; there was no illegality, unlawfulness or discrimination in the new Governor's action; the matter was an ordinary employment dispute covered by the Employment Act and did not raise constitutional questions; and the court may have lacked jurisdiction absent an appeal to the Public Service Commission
Costs
No orders as to costs since the confusion over the status of the petitioners' contracts was unclear to both parties
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.
Their appointment could only therefore be regarded as fixed term contracts coterminous with the term of the Governor who appointed them.
There was no obligation on the part of the new Governor to retain them hence no illegality, unlawfulness or discrimination when the new Governor informed the petitioners of the intention to terminate their contracts
The conclusion the court find and holds that the petition in its entirety lacked in merit and the same is hereby dismissed.
There will be no orders as to costs since the confusion over the status of the petitioner's contracts was unclear to both parties.
Issues in the judgment
#The judgment refers to prayers (c),(d),(g),(i),(j),(k),(l),(m) and (n) and later (a),(b),(c),(e),(f),(h) and (o), but the petition as reproduced enumerates only prayers (a) to (f), creating an inconsistency between the prayers listed in the pleadings and those the court disposes of
The court states the respondent maintained the contracts 'were on a fixed term of five years' while earlier the respondent's case was that the contracts were for three years and lapsed on 9th April 2021 - an internal contradiction in the length of the fixed term
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Zakayo & 3 others v Kitui County Public Serivice Board & 2 others; Kitui County Assembly (Interested Party) (Petition E212 of 2022) [2023] KEELRC 1722 (KLR)", Case Analysis (2023). Petition (dated 7th December 2022) - Nairobi ELRC; Nairobi ELRC Pet No. E063 of 2020 referenced separately. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1722/eng@2023-07-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.