Court: Kenyan Governors cannot dismiss executives at will
By Dennis Mbae | March 20th 2015
NYERI: The Court of Appeal has ruled that governors cannot dismiss county executives without following the due process.
In a precedent-setting ruling yesterday in Nyeri, appellate judges Alnasir Visram, Martha Koome and Otieno Odek, stated that although governors can dismiss county executives under Section 31 (a) of the County Governments Act, the Constitution restricted the arbitrary use of those powers.
“We find that the said power is qualified to the extent that the governor can only exercise the same reasonably. Dismissals should only be carried out for the benefit of the county and not to satisfy the selfish motive of the governor,” they said.
The ruling was occasioned by an appeal by Nyeri Governor Nderitu Gachagua against a county executive he sacked eight months after appointing her.
According to the appellate judges, the governors ought to give reasons for firing their ministers as well as giving them an opportunity to defend themselves in case of accusations.
The Court of Appeal upheld an earlier ruling by the Industrial Court that reinstated Cecilia Ndung’u, the Executive for Culture, Gender and Social Development, after finding that she was sacked without following due process.
In her submissions, Ms Ndung’u had maintained that she was relieved of her duties in a manner that was illegal, unconstitutional and degrading.
“I learned of my sacking from the public after the governor announced the termination of my services at a press conference. The dismissal letter, which took effect immediately, gave no reasons for my sacking,” said Ndun’gu, through her lawyer Ng’ang’a Munene.
But in his defence, Gachagua insisted that he was not obligated to explain why he sacked her because he appointed her to office at his pleasure.
“I can dismiss a county executive member and not explain my decision just as the President can sack a Cabinet secretary without giving reasons under Article 152(5) (b) of the Constitution,” he said through lawyer Wahome Gikonyo.
But the judges faulted Gachagua for dismissing the county executive without giving her a reason or an opportunity to defend herself.
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