Governors do not have a free hand in the firing of senior county officials, a court has said, at least not without first giving them a chance to be heard.
According to the Employment and Labour Relations Court, though the county chiefs are allowed, under Section 31 of the County Governments Act (CGA), to dismiss executive committee members, the officials must be accorded procedural fairness in the process of their removal.
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This, the court says, includes allowing them to respond to the accusations levelled against them. Failing this, Justice Bernard Manani said, the whole process would be rendered illegal. While delivering judgement on a case in which a former economic advisor to Lamu Governor Fahim Twaha, Mr Shekue Kahale, had challenged the termination of his contract, Justice Manani castigated governors for mistaking that section of the law to mean that they can dismiss county executives at will.
Mr Kahale, who was sacked last March “for engaging in premature campaigns” for the Lamu East parliamentary seat, had sued the governor, county secretary and the County Government of Lamu.
Justice Manani ruled that, although Mr Kahale was not a member of the county executive committee, he was a public official and his dismissal was illegal.
“The petitioner was in law and fact part of the broader workforce that comprises the public service in a county government,” said Justice Manani, noting that the County Public Service Board should have been involved in the process. The judge said the respondents’ case against Mr Kahale was built on conjecture without tacit evidence that he had engaged in premature campaigns in violation of the terms of his contract.
He noted that the petitioner was not afforded a fair hearing and no administrative inquiry was conducted before his employment was terminated.
“The country secretary confirmed that there was no disciplinary session conducted to [investigate] the accusations levelled against the petitioner before [his contract] was terminated,” said Justice Manani.
The court ruled that the conduct by the respondents trampled on Mr Kahale’s constitutional rights to fair labour practice and fair administrative action. Observing that it was illogical for the respondents to punish the petitioner “for views expressed by third parties about whether he should run for the political seat [or not]”, Justice Manani added that it was also not sensible to imagine that the petitioner had the powers to stop the rumours that were being spread about him.
The court awarded Mr Kahale Sh1.3 million, equivalent to his gross pay for six months, as compensation for wrongful termination of employment.
The petitioner had argued that he was appointed by the governor for a fixed term of three years. He said his term of office was to run until April 7, 2022 and that some of the requirements of his engagement was his total loyalty to the governor and the county government.
Mr Kahale said he undertook his duties diligently until March 15, 2021 when he received a letter signed by the governor terminating his services without giving him a chance to respond to the allegations.
On their part, the respondents told court that the petitioner did not discharge his mandate diligently as he embarked on early campaigns for the parliamentary seat, thus diverting his attention from his duties.
They accused Mr Kahale of using his position to advance his private political interests, saying they were left with no option but to terminate his services.
