Sang v Governor Kericho County & 2 others (Petition E001 of 2023) [2024] KEELRC 1631 (KLR)
The bottom line
#The Employment and Labour Relations Court voided Kericho Governor's nomination of a new County Attorney because the existing officeholder had not been lawfully removed first.
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 nomination of one Alice Bett to the position of the office of the County Attorney Kericho County was done procedurally and can stand.
- 2.What remedies this court can grant in the circumstances of this case.
Key legal issues
#Whether the nomination of Alice Chepngetich Bett as County Attorney Kericho County was procedural
The nomination was unprocedural, null and void. The Petitioner was substantively gazetted as County Attorney on 27th November 2020 with no expiry date, met the qualifications under section 5 and section 31(2) of the Office of the County Attorney Act, and had not been removed under section 13. There was therefore no vacancy and the nomination was void.
The court traced the Petitioner's appointment history: employed as County Legal Officer in 2014, then gazetted as County Attorney by Gazette Notice No. 10187 of 27th November 2020 with no expiry date and no indication of transitional status. Section 31 of the Act deems existing staff to transit, and section 31(3) requires redeployment only where qualifications are not met. The Respondents did not allege he failed the qualifications or Chapter Six. The removal mechanism in section 13 was never invoked, so nominating another person to a filled office was null and void.
What remedies flow from the unlawful nomination
The court issued declarations that the nomination was null and void and that the Petitioner legitimately occupies the office, an injunction restraining removal except under section 13, damages of Kshs 2 million against the 1st Respondent, and costs.
Having found the 1st Respondent acted illegally and in breach of Articles 73 and 232 of the Constitution, the court held the Petitioner entitled to damages for the breach. The injunction protects the incumbent against removal except through the lawful statutory mechanism, mirroring relief (f) sought in the petition.
Legal principles established
#- Where a substantive holder lawfully occupies the office of County Attorney, the Governor cannot nominate another person to the same office without first removing the incumbent under the mechanisms of section 13 of the Office of the County Attorney Act.
- Exercise of authority by a State officer is a public trust that must promote public confidence in the integrity of the office; nomination of a County Attorney while a substantive holder occupies the office offends Article 73.
Court orders
#- 1.Declaration that the nomination of Alice Chepngetich Bett to the position of County Attorney Kericho County was unprocedural, null and void and cannot hold.
- 2.Declaration that Gideon Kipkoech Mutai is legally and legitimately occupying the Office of County Attorney as per Gazette Notice No. 10187 of 27th November 2020.
- 3.Injunction restraining the 1st Respondent from removing the Petitioner from the office of the County Attorney unless acting lawfully under Section 13 of the Office of the County Attorney Act 2020.
- 4.Order that the 1st Respondent pay the Petitioner damages of Kshs 2 million for breach of Article 73.
- 5.Order that the 1st Respondent pay costs of the petition.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Articles 22, 23 and 258 of the Constitution of Kenya 2010 (enforcement of the Bill of Rights)
Relief refused
#Declaration that persons performing functions of County Attorney as at 13th July 2020 are deemed County Attorneys under the Office of the County Attorney Act by operation of law
Not specifically granted; the court instead issued a declaration confined to the Petitioner's own gazettement of 27th November 2020.
Reliefs directed against the 2nd Respondent (declarations of breach against the County Assembly) and the relief that the 1st Respondent's actions render him unfit to hold public office
No specific findings or orders made against the 2nd Respondent or on removal of the Governor from office; costs and damages imposed only on the 1st Respondent.
Costs
The 1st Respondent will pay costs of this petition.
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 Respondents never invoked this provision to remove the Petitioner and the act of nominating another was null and void ab nitio and an abuse of power and an abuse of the rule of law.
It is my finding therefore that the nomination of one Alice Bett to the position of County Attorney of Kericho County was unprocedurally, null and void and cannot hold.
I also do issue an injunction restraining the 1st Respondent from removing the Petitioner from office of the County Attorney unless acting lawfully under Section 13 of the Office of the County Attorney Act 2020.
The 1st Respondent having acted illegally, I find the Petitioner is entitled to damages for the said breach and I order he be paid damages to the tune of 2 million by the 1st Respondent.
The 1st Respondent will pay costs of this petition.
Issues in the judgment
#The petition is framed as a public-interest challenge to the nomination of Alice Bett by a public-spirited petitioner, but the judgment repeatedly identifies the Petitioner himself as Mr. Gideon Kipkoech Mutai, the erstwhile County Attorney whose removal he complains of, without expressly resolving the Respondents' locus standi objection.
The judgment holds that the gazette notice did not indicate a transitional basis for Mutai's appointment, whereas the Respondents' evidence asserted that he was gazetted in a transitory capacity and that Mutai's own affidavit acknowledged a transitional arrangement; the court does not expressly resolve this evidentiary conflict on the nature of the appointment.
Internal inconsistency in the Respondents' evidence quoted in the judgment describing the gazette notice of the County Attorney: one passage cites Gazette Notice of 4th December 2020 Vol CXXI No. 215 while another (and the court's declaration) relies on Gazette Notice No. 10187 dated 27th November 2020.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Sang v Governor Kericho County & 2 others (Petition E001 of 2023) [2024] KEELRC 1631 (KLR)", Case Analysis (2024). Petition dated 9th February, 2023 (ELRC Kericho). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1631/eng@2024-06-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.