The decision by governors to send home senior county employees and advertise their jobs was based on advice sought from their association’s legal team, the Saturday Nation can reveal.
The Council of Governors' lawyers advised them that they had power to fire employees, especially the chief officers and executive committee members.
But they also cautioned them on employees on fixed contracts because their blanket sacking would lead to costly court cases.
“Courts (as interpreters of law) are very sympathetic to employees in matters involving breach of contract.
"Therefore, as a matter of legal compliance and also for purposes of foreclosing legal exposure, I advise that governors examine each and every contract and get specific legal opinion on the terms therein before taking action," the advisory says.
Some of the staff who have been sent home in the devolved units include Executive Committee Members, chiefs of staff, personal advisors, as well as chief officers.
The governors had sought clarification on how to deal with the legality of the contracts.
The council’s chief executive Jacqueline Mogeni wrote to all governors advising them on the steps to take following their swearing in.
According to the legal opinion seen Friday, despite being employed on contract, it was revealed that the employees could after all be dismissed by their respective county bosses.
The advisory is premised on a precedent setting case in Nyeri in which the Court of Appeal clarified that a governor, indeed, has powers to dismiss the employees under the ‘pleasure doctrine’.
“At the end of the day, they are appointed and can be dismissed by the governor by dint of Section 45 of the County government Act 2013 as read with Section 51 of the Interpretation and General Provisions Act Chapter 2 of the law of Kenya,” the advisory read.
Governors have been advised to ensure that all contracts executed in the new administration should be drafted to expire on August 8, 2022, ‘or such earlier date as the governor deems fit’.
They should however not run beyond August 8, 2022.
Busia, Meru and Uasin Gishu are among counties governors have advertised the positions of all chief officers.