1.This appeal arises from a constitutional petition filed before the Employment and Labour Relations Court in Malindi being ELRC Petition No. E001 of 2020. The subject of the petition is the transition of public officers on the coming of a new Act of Parliament, in this case the County Attorney Act, 2000 (hereafter referred to as the Act). The petition was instituted by the 1st Respondent and it challenged the constitutionality, propriety and legality of the appointment, swearing in and assumption of office by the 1st appellant as the County Attorney. The grounds of the challenge were the absence of declaration of vacancy of the office of the county attorney; the non-conduct of interviews; the non-compliance with the provisions of Section 68 of the County Government Act; and the failure to vet the 1st Appellant; the failure to follow the constitutional provisions on appointment of public officers; and the withholding of information from the public surrounding the 1st Appellant’s appointment.
2.The petition therefore sought the following substantive reliefs:1.A declaration that the appointment, swearing in and assumption of office by the 1st Respondent was unprocedural, illegal and null and void ab initio.2.A declaration that the 3rd respondents violated the provision (sic) of Article 10, 35, 73 and 232 of the Constitution and presided over illegality and the 1st respondent is unprocedurally, irregularly and illegally in the office and do cease forthwith from discharging and occupying the position of county attorney of Kilifi County.
3.The appellants in opposing the petition contended that by dint of Section 31(1) of the Act, the county attorney retains any rights accrued and continue to hold their positions after the coming into effect of the Act if they meet the qualifications specified therein. According to the Appellants, the 1st appellant, based on the letter dated 14th October 2020, that was a “Corrigendum – Appointment to the Office of the County Attorney”, was to serve as County Attorney for a 6 year contract with effect from 27th July 2020. It was disclosed that there was an advisory opinion dated 10th November 2020 from the Office of the Attorney General, on the implementation of the Act, to the effect that a serving county attorney was to serve the functions for the unexpired terms of their contract.
4.The 2nd respondent’s position was that the county was entitled to retain the 1st appellant by dint of operation of Section 31(2) of the Act and took issue with what it termed as its malicious joinder in the petition.
5.Having heard the matter, the Learned Judge in the judgement dated 12th March, 2021 found that the 1st respondent failed to establish the alleged violations of the constitutional provisions. It was also found that the 1st appellant’s continued service as county attorney was within the law as she was properly appointed.
6.On the issue of the effective tenure of the county attorney the court considered Section 5(1) and 6(1) of the County Attorney Act as well as the provisions of the transitional section 31 of the Office of the County Attorney Act and found that after 6 years, there would be need for another appointment as a person could not be given a contract beyond the contractual tenure under the Act. It was noted that the 1st appellant was appointed as from 2nd April 2018 and the tenure of the governor ends on 27th July 2020, yet the Act provides for 6 years; that upon vacation of the governor then the 1st appellant’s contractual tenure comes to an end.
7.In order therefore to align the appointment of the 1st appellant with the law, the Court declared that the 1st Appellant’s letter of appointment was amenable to correction on the duration and terms of service. The court, inter alia, issued:
8.It was this declaration that provoked the instant appeal. The gist of the appeal is that the said 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 the Appellants and the 2nd Respondent.
9.This appeal was heard on 23rd March, 2023 vide the Court’s virtual platform. Learned Counsel Ms Nancy Gitari held brief for Mr Muthama for the Appellant, Ms Meeme held brief for Mr Mkan for the 1st Respondent while Mr Njoroge Mwangi appeared for the 2nd Respondent. Both Ms Gitari and Ms Meeme informed us that they had filed their submissions while Mr Njoroge informed us that he was not opposing the appeal.
10.According to the Appellants, by proceeding, after finding no merit on the appeal, to make a declaration whose effect was to amend the said letter of appointment, the Learned Trial Judge went on a frolic of his own and determined an issue that was not before him for determination. It was submitted by Ms Gitari that the parties were not given an opportunity to address the question of the terms of the contract hence the Appellants’ right to be heard was violated. According to the Appellants that decision amounted to the re-writing of a contract for the parties by the Court without hearing hence the same cannot stand.
11.On his part Mr Njoroge informed us that he was in support of the appeal.
12.In opposing the petition, the 1st Respondent, through Ms Meeme relied on his submissions and added that the letter in question was issued pursuant to an earlier letter of 2018 and that by the time of the issuance of the letter under consideration, the 1st Appellant was already acting in the same position though prior to the enactment of the County Attorney Act. It was submitted that the trial court’s finding was based on Sections 5 and 6 of the Act yet the 1st Appellant relied heavily on the opinion of the Attorney General. According to Learned Counsel, claims of office are subject to the provisions of the section establishing that office hence the trial court in making the declaration, was acting under section 12 of the Employment Act in protection of the Constitution. It was submitted that by relying on the Attorney General’s advisory opinion, the Appellants gave the trial court the avenue to deal with the issue raised in the said opinion. We were urged to note that the petition was brought by the 1st Respondent on behalf of the public in order to safeguard sovereignty of the Constitution.
Analysis and Determination
13.We have considered the issues raised in this appeal.
14.This being a first appeal, we are mindful that the duty of this Court as set out in the decision of Selle & Another v Associated Motor Boat Co. Ltd & Others (1968) EA 123 is to reconsider the evidence, evaluate it and draw our own conclusion of facts and law, and we will only depart from the findings by the trial Court if they were not based on evidence on record; where the said Court is shown to have acted on wrong principles of law as was held in Jabane v Olenja (1968) KLR 661, or where its discretion was exercised injudiciously as held in Mbogo & Another v Shah (1968) EA 93.
15.In this appeal the issues that fall for our determination are whether the order to amend the 1st appellant’s appointment letter was proper; whether the order issued was not prayed for in the pleadings; and whether the order was granted without giving the 1st appellant an opportunity to be heard; and whether in those circumstances it was a valid order.
16.We have briefly set out the cause of action and the remedies sought. Amongst the reliefs granted we have also set out the one that forms the subject of this appeal. It is clear from the foregoing that the issue of amendment of the 1st Appellant’s letter of appointment was not one of the issues in the petition. This therefore calls for a discourse on the importance of pleadings. We must underscore the need for pleadings to be as precise as possible. This Court in Dakianga Distributors (K) Ltd v. Kenya Seed Company Limited  eKLR rendered itself on the issue as follows:-
17.The function of pleadings is to give fair notice of the case which has to be met so that the opposing party may direct his evidence to the issue disclosed by them. To condemn a party on a ground of which no fair notice has been given may be as great a denial of justice as to condemn him on a ground on which his evidence has been improperly excluded. (See Esso Petroleum Co. Ltd vs. Southport Corporation  AC 218 at 238.)
18.This Court in on the case of Independent Electoral and Boundaries Commission & Another vs. Stephen Mutinda Mule & 3 Others; (2014) eKLR held as follows:-
19.The Supreme Court added its voice to the chorus in Raila Amolo Odinga & Another vs. IEBC & 2 others (2017) eKLR when it emphasised that: -
20.We appreciate that there may be occasions when the Court, depending on the manner in which the proceedings are conducted, may determine a case based on unpleaded issue. However, the proceedings must meet certain requirements. It was therefore held by this Court in MNM v DNMK & 13 Others  eKLR.Later in Kenya Commercial Bank Ltd v. Sheikh Osman Mohammed, CA No. 179 of 2010 the Court expressed itself thus:A court may validly determine an unpleaded issue where evidence is led by the parties and from the course followed at trial it appears that the unpleaded issue has been left to the court to decide (See Odd Jobs v. Mubea  EA 476). However, that was clearly not the case in this appeal.”
21.In the case before us, we have considered the pleadings as well as the evidence and we are unable to find that the parties were given an opportunity to address the issue of the amendment of the 1st Appellant’s letter of appointment and that the said issue was left to the Court to decide. While we understand the 1st Respondent to be saying that the Court in so doing was only safeguarding the Constitution, the Constitution itself in Article 22(3)(d) states that:
22.Therefore, the Court cannot purport to be enforcing the Constitution while violating the right to a hearing. We therefore find that the issue of amendment of the 1st Appellant’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.
23.In the premises we allow this appeal and set aside the Judgement of the Employment and Labour Relations Court in Malindi ELRC Petition No. E001 of 2020 dated 12th March, 2021 to the extent that it declared that “the letter Ref. No. CG/KLF/OG/VOL.1 dated 14th October 2020 is amenable to correction in clause 1 to effectively reflect thus, “You will continue in service as County Attorney, County of Kilifi, for a term commensurate to the term of the current Governor, or, until lapsing of six years from 27.07.2020, whichever comes first”.
24.As the petition was brought in the public interest, we make no order as to costs.