Court reverses tying of attorney’s tenure to governor term

 The Court of Appeal overturned the decision of the Employment and Labour Relations Court tying the term of the county attorney to that of the governor.

Photo credit: File | Nation Media Group

The Court of Appeal has reversed a decision by a lower court that a county attorney’s tenure is tied to the governor’s term in office.

The decision by the Employment and Labour Relations Court in Malindi delivered two years ago meant that county attorneys were required to leave office when a governor’s term comes to an end or after six years, whichever comes first.

However, the appellate court has reversed this decision in an appeal filed by former Kilifi County Attorney Michelle Bibi Fondo.

Judges Stephen Kairu, Pauline Nyamweya and George Odunga ruled that the declaration amending Ms Fondo’s letter of appointment, which effectively meant her term in the office was tied to that of the then governor, was not pleaded for.

“We, therefore, find that the issue of amendment of Ms Fondo’s letter of appointment, having not been properly placed before the trial court, and having not formed part of the issues for determination, the declaration amending the said letter cannot be allowed to stand,” said the judges.

They stated that they were unable to find that the parties were given an opportunity to address the issue of the amendment to the appointment letter and that the said issue was left to the court to decide.

The appeal stemmed from a constitutional petition filed in Malindi by the Commission for Human Rights and Justice against Ms Fondo, then Kilifi governor Amason Kingi and the Kilifi County Public Service Board. It was on the transition of public officers following the enactment of the County Attorney Act, 2020, with the petitioners challenging the legality of Ms Fondo’s appointment as the Kilifi County Attorney.

The petitioners complained of failure to declare a vacancy in the office, failure to conduct interviews, non-compliance with the provisions of the County Government Act, failure to vet Ms Fondo, and violation of the constitution in the entire recruitment process.

Ms Fondo and the county responded that by dint of Section 31(1) of the County Attorney Act, the county attorney retains any rights accrued and continues to hold their positions after the coming into effect of the Act if they meet the qualifications specified therein.

Justice Byram Ongaya heard the petition and ruled that the petitioner failed to establish the alleged violations of the constitution and that Ms Fondo’s continued service was within the law. However, the judge declared that Ms Fondo’s letter of appointment was amenable to correction on the duration and terms of service.

Justice Ongaya declared she will continue in service as Kilifi county attorney for a term commensurate with the term of the current governor or until the lapsing of six years. With this declaration, the judge directed that the judgment be served upon the Chief Executive Officer of the Council of Governors, with a view to bringing it to the attention of all the 47 county governments.

According to the judge, the effects of the County Attorney Act were to abolish the previous office that may have been established by the county public service board under the County Governments Act 2012.  But for the transitional provisions in section 31 thereof, the judge said, the holder of the office would have left service on account of the abolition of the office.

Justice Ongaya noted in his judgment that the tenure of the office as established in the Act is six years; hence a person who continues in office as county attorney, by reason of the transitional provision, can only claim the pending contractual tenure, where it is less than six years and nothing more.

However, Ms Fondo told the appellate court that the declaration was not sought in the petition and hence the parties were not heard thereon and that its effect was to alter the contract between her and the county.