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Court dismisses case by 130 sacked Tharaka-Nithi administrators

Tuesday December 10 2019
Njuki

Tharaka-Nithi Governor Muthomi Njuki addresses the media at Serena Hotel in Nairobi on November 5, 2019. PHOTO | LUCY WANJIRU | NATION MEDIA GROUP

By JOSEPH WANGUI

The Labour court has dismissed a case by 130 village administrators who challenged Tharaka-Nithi Governor Muthomi Njuki's decision to sack them on grounds of a bloated wage bill.

Justice Nzioki wa Makau said the administrators should have presented the matter to the Public Service Commission (PSC) before moving to court.

“The claimants cannot argue, in the face of the clear provisions of section 77 of the County Government Act, that they can bypass the legislation and come to this court, seeking reprieve for matters that were for the PSC to handle,” he said.

Section 77 (1) says that "any person dissatisfied or affected by a decision made by the county Public Service Board, or a person in exercise or purported exercise of disciplinary control against any county public officer, may appeal to the Public Service Commission against the decision."

Article (2) of the law section says the commission should address appeals on any decision relating to employment of a person in a county government, including a removal from office.

Justice Makau said the law does not envision a situation where litigants choose what part of a statute to follow.

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PETITIONERS' CASE

The claimants moved to court in November 2017 after being served with show-cause letters, requiring them to explain why the posts should not be revoked as they were non-existent.

The court heard that they were not subjected to a fair hearing prior to termination, against the rule of natural justice and public service policy.

Therefore, the former village administrators said, the termination of their employment was for all purposes and intent illegal, null and void.

Led by Mr David Kithaka, the claimants also told the court that due process was followed when they were employed by the administration of former Governor Samuel Ragwa as there was an advertisement and interviews.

They said they were issued with appointment letters on permanent and pensionable bases and they started with probations that lasted six months.

PSB'S LEGALITY

Mr Kithaka further told the court that the PSB was improperly constituted when they were sacked.

The claimants’ appointment letters were signed by the secretary while the termination letters were signed by the chairman yet they should also have been signed by the secretary, he said.

He also submitted that the termination was politically motivated for personal interests, due to changes from the first regime to the second regime.

While urging the court to order their reinstatement, the claimants also sought orders directing the devolved unit to stop "harassing, victimising, unrecognising and embarrassing" village administrators in the community.

QUALIFICATIONS

The county told the court that in August 2017, a head count revealed the village administrators were unqualified, necessitating issuing of the show-cause letters.

County Secretary Fredrick Njeru said their recruitment was unlawful and irregular, and noted hat in the event of a mistake, noting stops the governor and his team from acting.

“The claimants were called to a meeting via SMS, where they had a chance to clarify the explanations made, over and above their written explanations on the response to the notice to show cause. However, they all failed to satisfy the panel,” said Mr Njeru.

While testifying in court, PSB chair Stephen Nthiga Mitugo said issues of qualifications and age arose after an audit.

He said the administrators were asked to submit documents as required under Chapter 6 of the Constitution but that they did not comply.

JURISDICTION

Governor Njuki's administration also raised the issue of the court’s jurisdiction over the matter, in respect to provisions of the County Governments Act.

“In line with Section 77 of the County Government’s Act, the claimants were supposed to seek a remedy from the PSC as the decision they complained about was the decision of the PSB," county said.

"The suit is premature as the Public Service Commission was the proper forum."

The court also heard that where a clear procedure is provided for, it should be strictly followed.

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