Governors may sack executives, judge rules

What you need to know:

  • “By reason of politics and public policy, the President and County Governor should not be, and are not bound to employ members of their Cabinets otherwise than at pleasure,” said Justice Rika
  • He added: “The President and governors exercise their roles as popularly elected CEOs...”
  • The two had challenged the decision by Prof Kibwana to terminate their appointments on January 28, for gross misconduct.

Courts cannot reverse a decision to sack cabinet ministers or county executive committee members appointed by either the president or a governor, a judge Wednesday ruled.

Mr Justice James Rika of the Industrial Court said: “Just like the President, governors enjoy the sovereign power which belong to the people of Kenya by dint of Article 1 of the Constitution through the vote.”

Justice Rika said Cabinet Secretaries or County Executives are not public servants but appointees of the Executive hired at will.

“By reason of politics and public policy, the President and County Governor should not be, and are not bound to employ members of their Cabinets otherwise than at pleasure,” said Justice Rika who dismissed a case by two Makueni County Executive Committee members Tom Luusa Munyasya and John Kennedy Muteti, against Governor Kivutha Kibwana.

POPULARLY ELECTED

He added: “The President and governors exercise their roles as popularly elected CEOs...”

The two had challenged the decision by Prof Kibwana to terminate their appointments on January 28, for gross misconduct.

Mr Munyasya and Mr Muteti had stated in their industrial action that their appointments were terminated in contravention of the Employment Act 2007.

They accused the governor of sacking them without giving them notice and so urged the court to find their termination illegal and unlawful.

They pressed to have Prof Kibwana compelled to rescind the termination or they be paid service dues or damages and costs of the suit.

Mr Munyasya was an Executive Committee member, ICT and Special Programmes, while Mr Muteti was a County Secretary.

Lawyers Wilfred Nyamu and Nzamba Kitonga for the Governor and County Government of Makueni had opposed the case, saying the Constitution creates a pure presidential system of government and under Article 132, confers upon the President the power to appoint Cabinet Secretaries and Principal Secretaries.

Mr Nyamu submitted the formulation is replicated at county government level and any enabling legislation is required to respect and to conform to the same.

The defence lawyers urged the court to hold that their dismissal was lawful and in accordance with the Constitution.

The court was further informed the governor was not subject to Employment Act 2007 and other Labour Statutes.

In his ruling, the judge said the two were legally removed in accordance with the law.