Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Supreme CourtOtherCivil Reference 1 of 2015

In the Matter of Speaker, County Assembly of Embu

Supreme Court of Kenya
9 March 2018
8,185 words in judgment
View original judgmentRead on Kenya LawDownload the judgment (PDF) Watch case
AI-assisted case brief
·~33 min to read original · ~4 min brief

The bottom line

#

Kenya's Supreme Court set clear rules for filling a vacant Deputy Governor post.

What this practically means

#

The Supreme Court of Kenya ruled that when a Deputy Governor becomes Governor, the Deputy Governor post must be filled quickly, not left empty until the next election. The new Governor must nominate a replacement within 14 days, and the County Assembly must vote on that nomination within 60 days. The Court also said the new Governor must take the official oath as required by law. This decision ensures county governments keep running smoothly.

Executive summary

#
This is an advisory opinion rendered by the Supreme Court of Kenya under Article 163(6) of the Constitution, following a reference by the Speaker of the County Assembly of Embu. The reference arose from the impeachment of the Embu County Governor, which created a vacancy in the Office of the Governor and raised questions about the procedure for filling the resulting vacancy in the Office of the Deputy Governor. The applicant sought guidance on three main issues: the oath to be administered to a Deputy Governor assuming the governorship, the criteria for filling the vacancy in the Deputy Governor's office, and the timelines for assumption of office. The Court first confirmed its jurisdiction, finding that the reference concerned a County Government, the applicant was a State organ, the issues were not pending in a lower court, and the applicant had unsuccessfully sought advice from the Attorney-General. On the substantive issues, the Court held that the Office of Deputy Governor should not remain vacant until the next general election, as the Deputy Governor plays crucial roles in county governance. Drawing an analogy from Article 149 of the Constitution, which governs vacancies in the Office of Deputy President, the Court held that where a vacancy occurs in the Office of Deputy County Governor, the Governor must nominate a person within 14 days, and the County Assembly must vote on the nomination within 60 days. Where both offices are vacant simultaneously, the Deputy Governor's office remains vacant until a new Governor is elected, who must then nominate a Deputy within 14 days. The Court further held that a Deputy Governor assuming the governorship must take the oath of office as prescribed under Article 74 of the Constitution and Section 30 of the County Government Act. The opinion was unanimous, with all five judges concurring.

Questions the Court framed

#

The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Office of Deputy Governor would remain vacant upon assumption of Office of Governor by the Deputy Governor in situations where the Office of Governor had become vacant.
  2. 2.In what manner would a vacancy in the Office of the Deputy Governor be filled?
  3. 3.Which oath would be administered where a Deputy Governor was assuming the Office of Governor after a vacancy arose in the Office of Governor?
  4. 4.What timelines were applicable to the filling of vacancies in the Office of Governor and Deputy Governor, where the Deputy Governor was required to assume office as Governor?
  5. 5.When would the Supreme Court exercise its advisory opinion jurisdiction?

Key legal issues

#
01

Whether the Office of Deputy Governor would remain vacant upon assumption of Office of Governor by the Deputy Governor.

Holding

The Office of Deputy County Governor ought not to remain vacant until the next general election upon the assumption of the Office of Governor by the Deputy Governor.

Reasoning

The Court considered the crucial roles of the Deputy County Governor under article 179(1), (4) and (5) of the Constitution and section 32 of the County Government Act, including being the Deputy Chief Executive, a member of the County Executive Committee, and acting as Governor in the Governor's absence. The Court found it inconceivable that these roles could remain fallow until the next general election, as such an interpretation would be inconsistent with the vital objects of the Constitution.

02

In what manner would a vacancy in the Office of the Deputy Governor be filled?

Holding

A vacancy in the Office of Deputy County Governor is to be filled through nomination by the Governor, subject to approval by the County Assembly, drawing an analogy from the procedure for filling a vacancy in the Office of Deputy President under article 149 of the Constitution.

Reasoning

The Court noted that the Constitution is silent on filling a vacancy in the Office of Deputy Governor, creating a lacuna. Applying the principle under article 259 that the law is always speaking, the Court read article 182 alongside article 149, which provides for the nomination and approval process for the Deputy President. The Court held that the Governor should nominate a person within 14 days, and the County Assembly should vote on the nomination within 60 days.

03

Which oath would be administered where a Deputy Governor was assuming the Office of Governor after a vacancy arose?

Holding

A Deputy County Governor who assumes the Office of Governor under article 182(2) must take and subscribe to the oath or affirmation set out in the Schedule to the County Government Act, as provided for under article 74 of the Constitution and section 30 of the County Government Act.

Reasoning

The Court found no difficulty in this regard, as article 74 of the Constitution requires a person assuming a State office to take the oath or affirmation in the manner and form prescribed by the Third Schedule or under an Act of Parliament. Section 30(1) of the County Government Act specifically provides that the Governor shall take the oath as set out in the Schedule to that Act before assuming office.

04

What timelines were applicable to the filling of vacancies in the Office of Governor and Deputy Governor?

Holding

The Deputy Governor should assume office as Governor immediately upon the vacancy occurring. For filling the vacancy in the Office of Deputy Governor, the Governor must nominate a person within 14 days, and the County Assembly must vote on the nomination within 60 days.

Reasoning

The Court derived the timelines by analogy from article 149 of the Constitution, which provides a 14-day period for the President to nominate a Deputy President and a 60-day period for the National Assembly to vote. The Court applied these timelines to the county level to ensure continuity and good governance, rejecting the Attorney-General's submission that the office should remain vacant indefinitely.

05

When would the Supreme Court exercise its advisory opinion jurisdiction?

Holding

The Supreme Court will exercise its advisory opinion jurisdiction under article 163(6) when the matter concerns a County Government, the applicant is a State organ, the issues are not subject to proceedings in a lower court, and the applicant has unsuccessfully sought an opinion from the Attorney-General.

Reasoning

The Court found that the Reference met the constitutional threshold because it concerned a County Government, the applicant (Speaker of Embu County Assembly) is a State organ under article 178, the issues were not pending in a lower court, and the applicant had sought advice from the Attorney-General without success. The Court also noted the issues were of great public importance.

Legal principles established

#
  • A Deputy Governor vacancy must be filled, not left open until the next general election.
  • The Governor must nominate a replacement Deputy Governor within 14 days of the vacancy.
  • The County Assembly must vote on the nomination within 60 days of receiving it.
  • If both Governor and Deputy Governor posts are vacant, the new Governor fills the Deputy post after election.
  • A Deputy Governor who becomes Governor must take the oath set out in the County Government Act.

Court orders

#
  1. 1.The Court issued an advisory opinion on the procedure for filling a vacancy in the Office of Deputy Governor, the oath to be administered, and the timelines for assumption of office.

The bench

#

One judgment of the whole court — no separate or dissenting opinions.

majority
majority
Smokin Charles Wanjala
S C WanjalaSCJ
Currently serving
majority
Njoki Susanna Ndungu
N NdunguSCJ
Currently serving
majority
Isaac Lenaola
I LenaolaSCJ
Currently serving
majority
Jurisdiction invoked
Article 163(6) of the Constitution

Quotable passages

#

Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

So crucial are these roles to the operations of County Government, it is inconceivable that, constitutionally, they could remain fallow until the next cycle of a general election.
p. 13 Vacancy in Office of Deputy Governor
From the signal embodied in article 149 of the Constitution, and in the absence of any applicable legislative provision, we hold that, where a vacancy occurs in the Office of the Deputy County Governor, the Governor shall within fourteen days, nominate a person to fill such vacancy. The County Assembly shall vote on the nomination within sixty days after receiving it.
p. 14 Procedure for Filling Vacancy of Deputy Governor
The provisions of article 74 of the Constitution, and of section 30 of the County Government Act, apply to a Deputy County Governor who assumes the office of Governor under article 182(2) of the Constitution.
p. 15 Oath of Office for Deputy Governor Assuming Governorship
Where a vacancy occurs in both the offices of County Governor and Deputy County Governor at the same time, the office of the Deputy County Governor shall remain vacant until the election of a new Governor. The new Governor shall nominate a person to fill the vacancy within fourteen days after assuming office. The County Assembly shall vote on the nomination within sixty days after receiving it.
p. 14 Simultaneous Vacancies in Governor and Deputy Governor Offices
it is clear to us that this Reference meets the constitutional threshold for the exercise of the Supreme Court’s Advisory-Opinion jurisdiction under article 163(6) of the Constitution.
p. 10 Threshold for Advisory Opinion Jurisdiction

Key timeline

#
2018
Supreme Court of Kenya issues advisory opinion in the Embu County Deputy Governor vacancy case.

Practical implications

#
For lawyers

Advise clients on strict timelines

When advising county governments on succession, note the 14-day nomination and 60-day voting deadlines. These are derived from article 149 of the Constitution by analogy. Ensure clients understand that the Deputy Governor post cannot remain vacant indefinitely, and the oath requirement under section 30 of the County Government Act applies immediately upon assumption of office.

For businesses

County operations will not stall

Businesses contracting with county governments can expect continuity even when a Deputy Governor becomes Governor. The ruling prevents a leadership vacuum in the Deputy Governor's office, which is crucial for county executive decisions. This stability means contracts, permits, and county services should proceed without interruption during such transitions.

For individuals

Your county government stays functional

If your county's Deputy Governor becomes Governor, the post will be filled quickly, not left empty. This means county services like healthcare, roads, and business permits continue without delay. You can expect the new Deputy Governor to be nominated within two weeks and approved by the County Assembly within two months.

Frequently asked questions

#
What happens when a Deputy Governor becomes Governor in Kenya?+

The Deputy Governor post must be filled, not left empty. The new Governor must nominate a replacement within 14 days, and the County Assembly must vote on that nomination within 60 days. This ensures county government continues running smoothly.

How long does it take to fill a Deputy Governor vacancy in Kenya?+

The Governor must nominate a person within 14 days of the vacancy. The County Assembly then has 60 days to vote on the nomination. These timelines come from the Supreme Court's ruling in the Embu County case.

Does a Deputy Governor who becomes Governor need to take a new oath in Kenya?+

Yes. The Supreme Court ruled that a Deputy Governor assuming the office of Governor must take the oath set out in the Schedule to the County Government Act, as required by article 74 of the Constitution and section 30 of the County Government Act.

Can a Deputy Governor vacancy remain unfilled until the next election in Kenya?+

No. The Supreme Court said it is unconstitutional to leave the Deputy Governor post vacant until the next general election. The role is too important for county operations, so it must be filled promptly through the nomination and approval process.

Cite this brief

#

Cite this brief

Caselaw, "In the Matter of Speaker, County Assembly of Embu", Case Analysis (2018). Civil Reference 1 of 2015. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2018/49/eng@2018-03-09

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.