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Court of AppealPartially AllowedCivil Appeal (Nairobi)· [1994] KECA 82 (KLR)

John Mwangi King'ori & 4 others v Steve Flavian Mwangi & another [1994] KECA 82 (KLR)

Court of Appeal of Kenya
11 August 1994
14,251 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~57 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal ruled that councillors cannot remove a mayor by vote of no confidence, and a chaotic council meeting that purported to do so was legally void.

What this practically means

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Executive summary

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Five Nairobi councillors appealed against the judgment of Githinji J which had declared the purported removal of Mayor Steve Flavian Mwangi at a chaotic special council meeting of 20th April 1994 null and void, dismissed their counterclaim, and extended the Mayor's tenure to between 1st July and 15th August 1995. The Court of Appeal (Kwach, Omolo and Akiwumi JJ A delivering three concurring judgments) allowed the appeal on one ground only. It held that the 20th April meeting was illegal: standing order 42 required personal accusations against a member to be made in writing and referred to committee; the meeting degenerated into fighting so that no business could validly be transacted; and in any event section 16(1) of the Local Government Act (cap 265) permits election of a successor mayor only at the next meeting but one after a vacancy occurs, not at the same meeting. The court further held that councillors have no power to pass a vote of no confidence in a mayor - such a drastic power cannot be implied into the Act, and Parliament's omission contrasted with section 59 of the Constitution. However, the judges unanimously held that the trial judge erred in extending the Mayor's tenure to 1995: annual meetings under section 74 are mandatory and cannot be postponed by ministerial circular, so the first annual meeting was deemed held in 1993 and the Mayor's term expired at the second annual meeting in 1994. Costs against the appellants were set aside and substituted with costs payable by the City Council of Nairobi, which was directed to elect a new mayor before 15th August 1994. The appeal was otherwise dismissed.

Key legal issues

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01

Whether 'from any cause whatsoever' in section 16(1) of the Local Government Act permits removal of a mayor by vote of no confidence

Holding

No. The phrase covers only lawful causes recognised by the Act - death, resignation, incapacity and disqualification. A vote of no confidence exists under section 59 of the Constitution for the national Government but was deliberately withheld from local authorities and cannot be implied.

Reasoning

The court reasoned that a drastic power such as removing a mayor by vote of no confidence must be expressly conferred and cannot be implied. Parliament expressly provided the power in section 59 of the Constitution for the national Government but made no such provision for local authorities. The words 'from any cause whatsoever' can only apply to what can lawfully be done, and the Act provides no legal basis for a vote of no confidence.

p. 11
02

Whether the special council meeting of 20th April 1994 and the purported elections held there were valid

Holding

The meeting was illegal and its purported resolutions and elections null and void: standing order 42 was breached, the meeting descended into chaos, no resolution was validly passed, and any successor election at the same meeting contravened section 16(1).

Reasoning

Standing order 42 requires personal accusations against a member to be made in writing and referred to committee for investigation; the 45 councillors flouted this. The meeting broke down into fighting, so no proper business could be transacted and no minutes or resolutions exist. Even had the mayor been validly removed, section 16(1) required the successor's election at the next meeting but one, so the same-meeting elections of the new mayor and deputy were of no legal effect.

p. 15
03

The tenure of office of a mayor elected before the annual meeting of his year of election

Holding

The trial judge erred in extending the Mayor's tenure to 1995. The first annual meeting was deemed held between 1st July and 15th August 1993 whether held or not, so the Mayor's term ended at the second annual meeting between 1st July and 15th August 1994.

Reasoning

The Permanent Secretary's circular of 6th July 1993 neither cancelled nor could lawfully postpone the 1993 annual meeting, since annual meetings under section 74 are mandatory ('shall') and no one, not even the Minister, can stop them being held. Failure to hold an annual meeting is a breach of the law and advantage cannot be taken of the unlawful act; otherwise a mayor could extend his tenure almost indefinitely through postponed meetings, which would be repugnant to the Act.

p. 7
04

Whether the suit was properly brought by plaint rather than judicial review, and whether the appellants were properly sued

Holding

Yes. There was no decision capable of being quashed by certiorari, the meeting took no decisions, and a suit for an injunction and declaration was the proper course; non-joinder of other councillors does not defeat the suit and the appellants were ring-leaders.

Reasoning

Certiorari requires a decision to quash; the parties conceded no resolution was passed on 20th April. A declaratory suit may be more efficacious than judicial review, and courts ordinarily refuse judicial review where an alternative remedy exists. Under order 1 rule 9 of the Civil Procedure Rules non-joinder does not defeat a suit, and the five appellants were the identified ring-leaders of the rebellion. These objections had already been dismissed by Aluoch J and no appeal was preferred against her ruling.

p. 6

Legal principles established

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  • Councillors of local authorities in Kenya have no legal power to remove a mayor by vote of no confidence; the power cannot be implied into the Local Government Act.
  • A vacancy in the office of mayor may be filled only at the next meeting but one of the council after the vacancy occurs; a mayor cannot be removed and his successor elected at the same meeting.
  • Annual meetings of local authorities are mandatory under section 74 of the Act and cannot be postponed by the Minister or the Permanent Secretary; a mayor elected before the annual meeting of his year of election serves until the second annual meeting thereafter.
  • Personal accusations against a member may only be made in writing and referred to the appropriate committee, per standing order 42; a meeting convened to transact illegal business is itself illegal.
  • A meeting degenerating into chaos and fighting cannot validly transact business or pass resolutions.
  • Non-joinder of parties does not defeat a suit; and where no decision has been made, judicial review (certiorari) is unavailable and a declaratory suit with injunction may be the proper remedy.

Court orders

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  1. 1.Appeal allowed to the limited extent of setting aside that part of the judge's order extending the Mayor's tenure of office to a date between 1st July and 15th August 1995
  2. 2.That part of the order awarding costs against the appellants set aside and substituted with an order that the Mayor's costs in the High Court be paid by the City Council of Nairobi
  3. 3.Appellants granted one third of their costs of the appeal, to be paid by the City Council of Nairobi
  4. 4.The Mayor granted his full costs of the appeal, to be paid by the Council
  5. 5.The Council to meet and elect a new mayor and his deputy before 15th August 1994

Authorities

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Legislation

  • Local Government Act (cap 265)section 13(1), 13(2)
  • Local Government Act (cap 265)section 14(1)
  • Local Government Act (cap 265)section 16(1)
  • Local Government Act (cap 265)section 18
  • Local Government Act (cap 265)section 74
  • Local Government Act (cap 265)section 75(1)
  • Local Government Act (cap 265)section 85 (Standing Orders, Second Schedule, standing order 42)
  • Local Government Act (cap 265)section 87
  • Local Government Act (cap 265)section 252
  • Constitution of Kenyasection 59 (and section 59(3))
  • Civil Procedure RulesOrder XXXIX rules 1, 2, 3 and 7
  • Civil Procedure RulesOrder 1 rule 9
  • Civil Procedure RulesOrder 1 rule 22
  • Local Government (Abridgement of Terms of Offices) Act, 1987section 3
  • Nairobi City Commission (Extension of Tenure) Act, 1992

Cases cited (2)

  • Ridge v Baldwin
    [1964] AC 40
  • R v Epping and Harlow General Commissioners ex parte Goldstraw
    [1983] 3 All ER 257
On appeal from
High Court of Kenya
Jurisdiction invoked
First appeal to the Court of Appeal against the judgment of Githinji J in the High Court (Local Government Act cap 265 and Civil Procedure appellate jurisdiction)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "John Mwangi King'ori & 4 others v Steve Flavian Mwangi & another [1994] KECA 82 (KLR)", Case Analysis (1994). Civil Appeal (Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1994/82/eng@1994-08-11

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