[2024] KEELRC 13559 (KLR)

Kengros v Kilifi County Public Service Board (Cause E012 of 2021) [2024] KEELRC 13559 (KLR) (18 December 2024) (Ruling)

Neutral citation: [2024] KEELRC 13559 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Malindi

Cause E012 of 2021

M Mbarũ, J

December 18, 2024

Between

Silas Ngundo Kengros

Claimant

and

Kilifi County Public Service Board

Respondent

Ruling

1. The claimant filed an application dated 16 September 2024 seeking that the decision of the Public Service Commission (PSC) dated 5 August 2024 directing the reinstatement of the claimant as the Municipal Manager be adopted as the judgment of the court and a decree be issued. The claimant is also seeking that an order directing the County Secretary, County Government of Kilifi and the chairman, Board of the Municipality of Malindi by way of mandamus be issued directing the implementation of the ruling of the PSC and reinstate him as the municipal manager.

2. The application is supported by the claimant who avers that the respondent employed him as the municipal manager. While on two weeks' leave from 8 March 2021, he received a letter from the chairman, of the Municipality of Malindi Board extending the annual leave for 30 days. On 7 May 2021, the chairman wrote another letter directing him to report to the county secretary for deployment. Attached was another letter appointing another officer to take up the position of Municipal Manager in an acting capacity. However, the position was not vacant and the claimant was the holder of such office.

3. The claimant also aver in his affidavit that through a letter dated 10 May 2021, he appealed the decision to remove him from his position and the county secretary referred the matter to the Kilifi County Public Service Board, but they refused to respond. He stayed for 7 months without an office when he received a letter dated 25 November 2021 from the county secretary deploying him as the acting director of administration in the Department of Agriculture, Livestock Development and Fisheries.

4. The claimant avers that he was subjected to unfair labour practices, discrimination, and embarrassment and he opted to file suit against the respondent herein. In a ruling delivered on 17 March 2022, the court stayed the matter pending referral to the PSC and on 5 August 2024, a decision was issued directing the respondent to reinstate the claimant. To enforce the orders of the PSC, the claimant wrote a letter dated 14 August 2024 to the respondent but has refused to enforce the same.

5. In reply, the respondent filed the Replying Affidavit of Gideon Mumba the director, of administration services and the acting chief executive officer to the respondent and was given authority to respond herein. He avers that the PSC delivered a decision on 1st August 2024 and directed the respondent to reinstate the claimant as the municipal manager and that the decision taken by the respondent on 7 May 2021 be set aside. The office of the County Attorney has advised that the claimant was employed as the municipal manager but the application filed is fatally defective. The principles for the grant of judicial review remedy can only lie and the nature of the specific performance review order that is efficacious as addressed in the case of Kenya National Examination Council v Republic ex parte Geoffrey Gathenji Njoroge & 9 others [1997] eKLR that order of prohibition can only issue to prevent the making of a decision and an order of mandamus can only issue to command the making of a decision and an order of certiorari can only issue to quash a decision already made.

6. In this case, the claimant seeks to look into the merits of the decision of the respondent. The matter relates to the position of Town Manager under sections 31A and 31B of the Urban Areas and Cities Act as per the appointment letter dated 6 September 2018 and not as Municipal Manager which the claimant has purported to be awaiting. The position of the Municipal Manager, Malindi Municipality has been substantively filled and thus not available for judicial review remedy.

7. Mumba avers that the respondent has a statutory mandate under Section 88 of the Public Service Act and Regulation 24 of the Public Service Commission (County Appeals Procedures) Regulations to undertake and prosecute an appeal and may apply for a review of the decision within six months from the said from February 2025.

8. The 1st respondent has taken necessary steps in compliance with the decision and proceeded to lift the suspension of the petitioner through a letter dated 7 May 2021 through the County Public Service Board. He was allowed to assume office as the Town Manager and not as the Municipal Manager he has alleged to have done. The respondents have notified the Public Service Commission of their intention to seek a review of its decision.

9. The instant application is merely speculative and premature as the mechanism of addressing appeals before the Public Service Commission is prescribed under its regulations. The petitioner has not exhausted these procedures. He has continued to receive salaries together with financial benefits. The reinstatement of the petitioner as the Town Manager under Sections 31A and 31B of the Urban Areas and Cities Act as per his appointment letter of 6 September 2018 was not for the position of Municipal Manager as alleged. He has since been confirmed as the Chief Officer in charge of Physical Planning and Urban Development and the same is subject to a review before the Public Service Commission owing to the continued material non-disclosure and misrepresentation of facts by the petitioner that ought to be corrected.

10. The Municipal Manager Office is an office within the county public service and within the mandate of the respondent to establish within the provisions of Section 59 of the County Governments Act and Section 28 of the Urban Areas and Cities Act. The petitioner is seeking orders of mandamus which has the effect of shifting the statutory powers and mandate of the respondent in the supervision of his role as Municipal Manager. The order of mandamus sought is a blanket order based on facts that have ceased to exist and facts withheld by the petitioner from the court so as to take advantage. The court should decline to issue the orders sought as the same will be in vaccuo.

11. The circumstances leading to the filing of the present case have changed, the respondent has filed an appeal to the PSC and the petitioner has been receiving his salaries and benefits as the Ag. Director of Administration in the Department of Agriculture, Livestock Development and Fisheries awaiting the position of Municipality Manager, Malindi Municipality to be substantively filled as per Section 29 of the Urban Areas and Cities act which should be done competitively as required under Section 57 of the County governments Act.

12. The substratum of the suit has since collapsed and in the interests of justice, the orders sought should not be issued. Application be dismissed with costs.Determination

13. The claimant is seeking to enforce the PSC decision dated 5 August 2024 directing the respondent to reinstate him as the Municipal Manager and to set aside its decision and letter of deployment dated 7 May 2021.

14. This is purely an enforcement process following the claimant filing this claim which was stayed to allow him to exhaust the available mechanisms with the PSC. A decision of the PSC has since been issued.

15. Whereas the claimant claims that he was appointed as the Town Manager through a letter dated 6 September 2018, he was deployed as the Municipal Manager for Malindi Municipality with effect from 1 October 2018 through a letter dated 26 September 2018. This is under Section 10(5) of the Employment Act.

16. The challenge by the respondent was that the PSC through its decision directed for reinstatement as the Municipal Manager but the claimant was the Town Manager. On the records, the respondent reviewed such an appointment with the Municipal Manager. This was the position reviewed by the PSC in its decision and reinstated the claimant.

17. For closure, a conclusion in this matter is a judgment and decree thereof.

18. In this regard, the respondent's Replying Affidavit does not address the substantive issue at hand, the PSC decision, which is subject to enforcement. There have been no reviews or orders setting the decision aside.

19. The respondent has urged the court that there is an appeal to the PSC through the provisions of Regulation 24 of the Public Service Commission (County Appeal Procedures) Regulations, 2022 but the subject appeal and the details thereof, if any, has not been disclosed to the court. The decision by the PSC stands.

20. The application by the claimant is justified to the extent the orders sought are with merit and are hereby issued;

21. a.The decision of the Public Service Commission dated 1st August 2024 communicated to the parties through a letter dated 5 August 2024 is hereby adopted as the judgment of the court;b.The respondent is hereby directed through the County Secretary, the County Government of Kilifi and the Chairman, of the Board of the Municipality of Malindi to reinstate the claimant as the Municipal Manager;c.The claimant is awarded costs.

DELIVERED IN OPEN COURT AT MOMBASA THIS 18TH DAY OF DECEMBER 2024. M. MBARŨJUDGEIn the presence of:Court Assistant: Japhet