Mandera Governor Ali Roba has the option of reinstating three county executive members and a chief officer he sacked in February or pay them gratuity earned up to the date of their dismissal plus their salary for the remaining period of their five year contract.
This follows a ruling on Thursday in Nairobi by Justice Onesmus Makau of the Employment and Labour Relations Court.
The four county officials sued the county government, arguing that their dismissal was not procedural.
And while making his ruling, the judge shielded the county government from being rendered dysfunctional after declining to grant judicial review orders sought by the four petitioners.
“I have considered the submission by the defence counsel that granting judicial review orders may render the county government dysfunctional and deny services to the constituents of Mandera County,” he said.
Judge Makau observed that the purpose of the court is to do justice.
“I give the respondents the liberty to compute and pay the petitioners the gratuity earned up to the date of dismissal plus their salary for the remaining period of their contract term as an alternative to the judicial review orders granted,” he ruled.
Governor Roba has to, within 30 days from the date of the judgment, indicate his choice between paying damages and reinstating the officials.
After 30 days, the governor will compute and pay damages within 90 days from the date of judgment.
The court barred Governor Roba from filling vacancies caused by the impugned dismissal of the petitioners.
The petitioners, Abdiaziz Sheikh Maad (Trade and Industrialisation), Johora Abdi (Agriculture Livestock, Fisheries and Irrigation) Dr Shamsa Mohammed (Gender and Social Services) and Hassan Mohamed Ahmed (Chief Officer for Health) moved to court on February 18 seeking reinstatement orders.
The three ministers were nominated by Governor Roba and vetted by county assembly and later appointed on July 27, 2018 while the chief officer was appointed on September 26, 2018.
They sued Governor Roba, the county government of Mandera and the Mandera County Public Service Board after being fired in February.
They accused the respondents of flouting Articles 47 and 50 of the Constitution and sections 31 and 40 of the County Governments Act.
In their petition, they accused governor Roba of prematurely dismissing them from service without any justification and in a manner that that was disrespectful and degrading, contrary to various constitutional and statutory provisions.
NO SUFFICIENT REASONS
They further maintained that their dismissal was without sufficient reasons and that they were not given a fair hearing or an opportunity to defend themselves.
Through their lawyer, Stephen Mogaka, the petitioners said that having been dismissed under section 40(1) of the County Governments Act, the governor violated their rights to a fair hearing and fair labour practices, and the right to fair administrative action because reasons cited were contentious.
They argued that their contract terms indicted that either party could terminate the same by issuing one month notice or paying one month’s salary in lieu of notice but their employer reserved the right to terminate the contract summarily without compensation in case the petitioners were found guilty of gross misconduct.
They said that on February 13, 2020, Governor Roba arbitrary dismissed them, barred them from accessing their offices and further denied them audience.
In response, Governor Roba said the petitioners were appointed to promote the interests of the Mandera County government but failed to do so.
He said their contracts indicated that they could be reshuffled, which could involve disengaging them.
He said he had issued Mr Maad with a warning letter on March 20, 2018 for failing to facilitate investigations into staff payroll mismanagement.
Through a lawyer, Governor Roba argued that the reinstatement orders sought were in violation of his individual autonomy in the nomination and selection of the officials and were intended to frustrate and delay the proper functioning of the his administration.
But according to the petitioners, the pleasure doctrine does not exist in Kenya as it is akin to a master-slave relationship where no rule of law prevails, hence there was a violation of their employment and constitutional rights.
Further, they argued that since they were appointed by the people of Mandera County and not by the governor, theirs is a public office not amenable to the pleasure principle.
They argued that their dismissal letters contain inconsistencies and contradictions that were unreasonable and unfounded allegations directed at them and their professions and which they did not get an opportunity to respond to.
“I have carefully considered the petition, the affidavits and submissions by counsel [and] it is clear that the petitioners’ contracts of services were prematurely terminated by the 1st respondent vide the letters dated 13/2/2020. It is also common ground that the dismissal was done under section 31 (a) of the County Governments Act and the termination clause of the petitioners’ respective contract of service,” said Judge Maku.
“In my view, the current Constitution does not fathom a case were by a public officer or a State officer would be punished or removed from office without following the due process of the law. A governor has an obligation to act fairly, reasonably and for the common good of the constituents of the county,” observed Justice Makau.
On procedural fairness, the judge noted that the respondents did not adduce any evidence to rebut the allegation by the petitioners that they were never given any prior notice of their wrongdoing and invited to make their presentations before dismissal.
“In this case the petitioners were not served with any show cause letter or accorded any oral hearing by the 1st respondent or at all before the dismissal. Consequently, I return that the dismissal of the 1st, 2nd and 3rd petitioners was done without following due process but through breach of the rules of natural justice,” ruled Judge Makau.