Ong’era v County Government of Kisii & 2 others (Petition E005 of 2024) [2024] KEELRC 1033 (KLR)
The bottom line
#The Employment Court ruled that a Kenyan governor cannot unilaterally send a County Executive Committee Member on compulsory leave; removal must go through the County Assembly.
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 application for conservatory orders is merited
- 2.Whether the dispute is ripe for determination
- 3.Whether the purported compulsory leave was lawful
- 4.Whether the Respondents violated the Constitution
- 5.Whether section 76(6) of the County Governments Act is unconstitutional
- 6.Whether the instant Petition and application are an abuse of the court process for material non-disclosure
- 7.Whether compulsory leave amounts to unfair termination
- 8.Whether the Petitioner has specifically pleaded and proven any violations of the Constitution
- 9.Whether the Petitioner is entitled to the orders sought
- 10.Whether the Petitioner was constructively dismissed
Key legal issues
#Whether the Governor could lawfully send a CECM on compulsory leave under sections 39 and 76(6) of the County Governments Act
No. Section 76(6) does not apply to CECMs, who are excluded from the county public service, and the removal framework in section 40 channels allegations through the County Assembly, not the Governor.
Section 2 of the County Governments Act expressly excludes CECMs from the county public service, so section 76(6) could not ground the compulsory leave. Section 40 provides the exclusive removal process, requiring a County Assembly motion and Select Committee investigation. The Governor lacks the instruments to conduct investigations and did not disclose any. The alleged complaints of gross misconduct and abuse of office fell squarely within section 40 and should have gone to the County Assembly.
Whether the Mutwol compulsory-leave doctrine applied to the Petitioner
It did not; the case was distinguishable because it concerned ordinary employment under a collective bargaining agreement, not a holder of a constitutional/statutory office.
In Mutwol the Court of Appeal upheld compulsory leave as a lawful investigative tool where the CBA clothed the employer with suspension powers. The Petitioner, however, is an office holder whose position is recognised by Article 179 of the Constitution and is protected by the due process in Article 236. The ordinary-employment rationale could not be transposed to his removal, which is governed by a specialised statutory architecture.
Whether the dispute was ripe and whether the Petition was an abuse of process for non-disclosure of the earlier Kisumu Petition
The dispute was justiciable because the challenged decision to send the Petitioner on compulsory leave was real and operative, not hypothetical; the non-disclosure/abuse objection did not succeed.
The Respondents argued, citing ripeness authority, that the Petitioner faced no removal process and was still receiving full benefits, rendering the question hypothetical. The Court held that the actual decision to send him on compulsory leave was not disputed and that its lawfulness is neither hypothetical nor idle. The Petitioner explained that the earlier Petition was withdrawn as defective before this one was filed.
Legal principles established
#- A member of a County Executive Committee is not part of the county public service under the County Governments Act.
- A Governor has no lawful authority to send a CECM on compulsory leave or conduct disciplinary investigations into allegations against a CECM; removal must follow the County Assembly process under section 40 of the County Governments Act.
- The Court of Appeal's compulsory-leave jurisprudence for ordinary employees does not apply to holders of statutory/constitutional offices such as CECMs.
Court orders
#- 1.A declaration that the 2nd Respondent's decision to send the Petitioner on compulsory leave was unlawful
- 2.An order of certiorari quashing the decision of the 2nd Respondent to send the Petitioner on compulsory leave
- 3.A mandatory order compelling the 1st and 2nd Respondents to reinstate the Petitioner to the position of County Executive Committee Member (CECM)
- 4.Costs of the Petition awarded to the Petitioner against the Respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original jurisdiction under the Employment and Labour Relations Court Act and Article 162(2) of the Constitution (employment and labour relations), not expressly stated in the judgment
Relief refused
#Declaration that section 76(6) of the County Governments Act is unconstitutional
The provision does not apply to members of a County Executive Committee, so the challenge was misplaced
Declaration of constructive dismissal and compensation of twelve (12) months' salary and terminal dues
The Petitioner is still in office and in employment; constructive dismissal had not arisen as he had not resigned
Costs
The Petitioner has succeeded. He is awarded costs against the Respondents.
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.
The Court has no hesitation in holding that the Governor did not possess any lawful authority to send the Petitioner on compulsory leave or conduct investigations into the allegations against the Petitioner under the provisions he cited or any other law, and the Court so finds.
The definition is clear beyond peradventure that a member of the County Executive Committee is not part of the county public service.
A declaration is hereby issued that the 2nd Respondent’s decision to send the Petitioner on compulsory leave was unlawful.
A mandatory order is hereby issued compelling the 1st and 2nd Respondents to reinstate the Petitioner to the position of County Executive Committee Member (CECM).
The Petitioner has succeeded. He is awarded costs against the Respondents.
Issues in the judgment
#The judgment does not state the Petition's case number on its face, and the list of Respondents' issues in paragraph 14 is blank ('The Respondents identified the Issues in contention as:' with the enumeration empty)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ong’era v County Government of Kisii & 2 others (Petition E005 of 2024) [2024] KEELRC 1033 (KLR)", Case Analysis (2024). Petition No. E006 of 2024 (not stated on the face of the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1033/eng@2024-05-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.