[2019] KEELRC 700 (KLR)
The court found that although the applicant's termination was quashed, the employer (County Council of Meru) ceased to exist following the constitutional restructuring under the 2010 Constitution. The new county government structures are not automatic successors to the former County Councils, and thus there is no...
Source-derived case information.
- Citation
- [2019] KEELRC 700 (KLR)
- Parties
- Applicant: Republic; Respondent: Public Service Commission; Respondent: The County Council of Meru; Applicant: Joel Kaithia Mathiu
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 3 of 2016
- Procedural Posture
- Miscellaneous Application / Ruling
- Outcome
- application dismissed
- Judges
- AN Makau
- Legal Topics
- Unlawful Termination, Salary Arrears, Terminal Benefits, Public Service Employment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Public Service Commission
Respondent
The County Council of Meru
Respondent
Joel Kaithia Mathiu
Applicant
Procedural Posture
Miscellaneous Application / Ruling
Legal Issues
- 1 Whether the ex parte applicant is entitled to payment of all salaries, allowances, and terminal benefits following the quashing of his termination.
- 2 Whether the current county government structures are successors in title to the former County Councils for purposes of execution of judgment.
Ratio Decidendi
The court found that although the applicant's termination was quashed, the employer (County Council of Meru) ceased to exist following the constitutional restructuring under the 2010 Constitution. The new county government structures are not automatic successors to the former County Councils, and thus there is no legal entity against which the judgment can be executed. As a result, the application for payment of salaries, allowances, and terminal benefits could not be granted, rendering the motion a non-starter.
Court Disposition
application dismissed
Orders
- The motion is dismissed with no order as to costs.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT & LABOUR RELATIONS
COURT OF KENYA AT NYERI
MISC. APPLICATION NO. 3 OF 2016
REPUBLIC........................................................................................APPLICANT
VERSUS
1. PUBLIC SERVICE COMMISSION
2. THE COUNTY COUNCIL OF MERU................................RESPONDENTS
EX PARTE JOEL KAITHIA MATHIU
RULING
1. The Ex ParteApplicant herein seeks through the Originating Notice of Motion Application dated 20th August 2019 for orders that
1. The Respondents be ordered to jointly and severally pay the ex parteApplicant Joel Kaithia Mathiu all the salaries and allowances from the date of the quashed termination to date of the order herein at the rate prevailing at the different periods amounting to Kshs. 23,570,687. 70 as at 31/7/17 plus all future accruals at the rate of Kshs. 213,328 per month from 1/8/17 plus all his termination benefits till payment in full plus all the interests thereon at court rates.
2. The motion was supported by the affidavit of the ex parteApplicant and the grounds on the face of it, to wit, that the effect of the judgment quashing the ex parteApplicant’s termination of employment was to give continuity to the then contract of employment as if it were never terminated and that the 2nd Respondent had changed its structures so much that the position of the County Council Treasurer or its equivalent no longer exists. It was asserted that in the interests of justice the ex parteApplicant should be paid all his salaries, allowances and terminal benefits and honourably quit the service of the 2nd Respondent and/or its successor.
3. The motion was not opposed by the Respondents and Mr. Mwendwa Mwarania argued the motion before me on 3rd October 2019 and I reserved the Ruling to today. The suit was against the Public Service Commission and the County Council of Meru. At the time in 2001, the 2nd Respondent existed as a legal entity and the 1st Respondent was the agent that hired the ex parteApplicant herein. His employer ceased to exist and his judgment was therefore frustrated as there is no one to execute against as the County Government structures established pursuant to the Constitution of Kenya 2010 are not the ipso factosuccessors in title to the former County Councils. County Councils at the time covered vast areas and in devolution some units covered by one County Council are covered by 2 or 3 counties. In my view this motion is a non-starter and not fit for grant. Same is dismissed with no order as to costs.
It is so ordered.
Dated and delivered at Meru this 4th day of October 2019
Nzioki wa Makau
JUDGE
I certify that this is a true
Copy of the original
Deputy Registrar