Court orders Governor to pay lawyer Sh2.4m for revoking county job offer

Tana River Governor Dhadho Godhana has been ordered to pay his former legal advisor Sh2.4 million as damages after a court found that he had discriminated against him during recruitment for the position of County Attorney.

Justice Monica Mbaru of the Employment and Labour Relations Court in Malindi further ordered the County Assembly of Tana River and its Clerk, Mr Abdullahi Hussein, to jointly and severally meet costs due to Mr Isaiah Ndisi Munje, the petitioner.

This is after the court noted that the Assembly and its Clerk admitted contempt of court orders.

The court noted that Mr Godhana, having initiated the process of the appointment of Mr Munje as County Attorney failed to conclude the recruitment in accordance with the provisions of the County Attorney Act.

Justice Mbaru ruled that the direct issuance of a letter (of appointment) and then refusal to complete the process of recruitment placed Mr Munje at a great disadvantage which led to other third parties becoming preferred nominees.

“This is defined under the Employment Act, 2007 as being discriminatory against the potential or prospective employee such as the petitioner became as of October 10, 2022,” ruled Justice Mbaru.

She added: “The court finds the discrimination against the petitioner was not justified. It placed him at a great disadvantage and eventually lost other opportunities for possible employment yet he held onto his letter of appointment by the second respondent (Governor).”

The court noted that although the petitioner’s appointment by Mr Godhana as County Attorney failed to meet the threshold of the County Attorney Act for want of notice to the County Assembly for vetting and approval, the Governor being a responsible officer knowingly issued him with a letter of appointment dated October 10, 2022.

It also noted that the letter revoking the appointment dated November 1, 2022 was not issued to the petitioner until he filed his petition.

Justice Mbaru noted that the Governor as the officer responsible for securing the County of Tana River has since August 9, 2022 until the petition was filed enjoyed the services of Mr Munje.

She noted that the Governor’s letter appointing the petitioner as County Attorney (petitioner) had legitimate expectation that he was the candidate of choice.

“The duty to place the name of the petitioner before the County Assembly for vetting is vested in the second respondent (Governor),” said Justice Mbaru adding that the Governor, instead issued a letter recommending another person leaving the petitioner hanging on his letter.

The court also noted that the petitioner was not without blame as he had filed a case after the respondents stopped payment of his salary and withdrew it under the promise that his salary will be reinstated.

“Up until this petition, he claims that his salary from July 2022 to date has not been paid, a diligent and skilled employee has a duty to secure new opportunities particularly where he is seeking constructive dismissal,” said Justice Mbaru.

Mr Munje had told the court that the Governor appointed him as County Attorney in accordance with the Office of County Attorney Act but the County Assembly had not approved his nomination as the Governor failed to submit his name for vetting.

He argued that he applied for the position of County Attorney, was shortlisted and the Governor appointed him to the position.

The County Assembly and its Clerk told the court that the petitioner did not transition to the position of County Attorney and that if his appointment by the Governor was proper, under the Public Appointment of County Officer Act, proper procedure was not followed.

They argued that his name should have been placed before the Assembly for vetting and notice issued through the Clerk which was not the case.

The Governor and the county government told the court that the petitioner was not a County Attorney as alleged and that he did not transition to the position.

They told the court that for the Governor to appoint a County Attorney, the nominee must be presented for vetting by the Assembly which process the petitioner was not taken through.

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