Counties lose millions through staff dismissals

County governments have been losing millions of shillings to compensate employees illegally sacked.

For instance, five counties - Nyeri, Laikipia, Embu, Isiolo and Meru - have to date spent about Sh100 million on compensating sacked employees after courts overturned governor's decisions.

Experts attribute this to loopholes and contradictions in the law. Some sections of the County Government Act allow governors to sack members of the executive whenever they deem it fit.

However, other sections take this pleasure away from governors and this has seen millions in taxpayers’ money used in compensation.

Under Section 30(a) of the Act, the governor can sack a county executive committee member at any time. But Section 40 says only the the county assembly has these powers.

The Employment and Labour Relations Court has been busy handling cases of employees sacked by governors. Some lawyers, it appears, have specialised in such cases and are minting millions from them.

In most cases, the courts have ruled in favour of the employees. Governors have been accused of not giving their employees a fair hearing before dismissing them.

In a 2014, Justice Joram Abuodha dismissed an argument by the defence, former Nyeri Governor Nderitu Gachagua, that employees serve at the pleasure of the governor.

County government lawyer Wahome Gikonyo cited sections of the Act that say the governor may dismiss a county minister if he considers it appropriate or necessary.

But the court ruled that the pleasure doctrine does not exist in the Constitution and a governor cannot terminate staff without due process.

A three-judge bench in the Court of Appeal later tried to clear the air but experts say the interpretation by justices Alnashir Visram, Martha Koome and James Odek was vague.

“We are of the view that the law grants power to a governor to dismiss a CEC at any time, that is, at his pleasure. However, we find that the said power is qualified to the extent that he can only exercise the same reasonably. The provision places an obligation on the governor to exercise the said power only when necessary,” the judges ruled.

Pleasure doctrine

Lawyer Peter Muthoni said the pleasure doctrine was misplaced and should be scrapped. But Mr Gikonyo said governors, just like the President, should have the power to dismiss executives at will.

“No one has gone to the Supreme Court to seek further clarification and I think it is time governors took that step,” said Gikonyo.

In the Nyeri case, although the court reinstated Culture Executive Cecilia Ndung’u, her docket was later scrapped. 

Ms Ndung’u went back to court demanding Sh9.3 million as lost future earnings after her docket was done away with before the expiry of her five-year term. She was awarded Sh4.5 million in compensation.

The highest reward to date is a Sh12.8 million awarded to former Embu County Secretary Margaret Lorna Kariuki for unlawful dismissal.

Governors argue that they have the power to restructure their executives as this also applies to the President, who has power to appoint and dismiss members of the Cabinet.

It is the exercising of such powers that has landed governors in trouble, with the taxpayer being the chief loser.

In 2015, Budget and Appropriations committee chairman Joseph Mwaniki estimated that Embu County had spent 10 per cent of its Sh400 million budget on court cases. Embu is one of the counties with many pending cases.

In October 2013, Embu’s County Public Service Board chairman Mundia Gateria was awarded Sh5 million as compensation for wrongful dismissal.

In another case, a former trade executive told a court that Embu Governor Martin Wambora fired him because he was a member of a community the governor hated and blamed for the two attempts to impeach him.

Isiolo County had to pay Abdikadir Suleiman Sh2.3 million in compensation after he was sacked.

Following a disagreement with the former county secretary, Governor Godana Doyo told Suleiman his services would no longer be required.

The governor did not give him a termination letter or prior notice. He sacked Suleiman verbally.