TAIB A. TAIB v MINISTER FOR LOCAL GOVERNMENT [2007] KECA 345 (KLR)
The bottom line
#Kenya's Court of Appeal quashed a Minister's revocation of a nominated councillor's seat because the notice wasn't properly delivered and fair hearing rules were ignored.
What this practically means
#Executive summary
#Key legal issues
#Power of the Minister to revoke a nominated councillor's appointment
By a 2-1 majority (Omolo and Waki, JJA), the revocation was invalid, though for different reasons: Omolo JA held the proviso to section 27(2) void for conflict with section 33 of the Constitution; Waki JA upheld the Minister's power but found non-compliance with section 267. Githinji JA dissented, holding the power validly conferred and substantially complied with.
Omolo JA reasoned that section 26(2) imports the criteria and principles of section 33 of the Constitution into councillor nominations; those principles contain no revocation power even for the President, so an unbridled ministerial revocation power conflicts with the Constitution and is void under section 3. Waki JA, applying ordinary statutory interpretation, found Parliament deliberately retained section 27(2) when amending section 26, making the provisions mutually exclusive. Githinji JA held the court cannot read limitations into clear statutory language.
Delivery of the notice of termination under section 27(2) read with section 267
The majority (both Omolo and Waki, JJA) held the purported termination a nullity because the notice was never delivered by any of the modes in section 267(a)-(c); Gazette publication under paragraph (d) is a last resort requiring impossibility of the other modes and publication in a local newspaper as well.
Section 267 prescribes service methods in descending order of priority. It was common ground that no attempt was made to serve personally, by post or by affixing, so resort to the Gazette was premature and ineffective; further, even paragraph (d) required publication in a circulating local newspaper in addition to the Gazette, which was not done. The seat only becomes vacant upon delivery of the notice, so the office was never validly vacated.
Application of the rules of natural justice
The majority held that nothing in the Act excludes natural justice; a nominated councillor does not serve at the pleasure of the Minister, so the Minister must give the councillor the charge and an opportunity to respond before terminating the nomination.
Unless expressly or impliedly excluded, natural justice applies to statutory decision-makers. The practical effect of the proviso would be to make the councillor's tenure hold at the Minister's pleasure, contrary to the scheme of section 33 of the Constitution. Distinguishing Durayappah v Fernando, the appellant complained as an individual councillor, not on behalf of a dissolved council, so audi alteram partem applied to him personally.
Legal principles established
#- As a binding ruling of the Court of Appeal, lower courts must treat the proviso to section 27(2) of the Local Government Act as void to the extent that it purports to give the Minister an unbridled power to revoke a nominated councillor's appointment inconsistently with the criteria and principles of section 33 of the Constitution applied by section 26(2) of the Act.
- A termination of a nominated councillor's appointment takes effect only upon delivery of a written notice to the councillor; service modes under section 267 of the Act are in descending order of priority, and Gazette publication is available only where personal service, post and affixing are not possible, and then requires publication in the Gazette and in at least one local newspaper.
- Before the Minister terminates a nominated councillor's appointment the rules of natural justice apply: the councillor must be given the charge and invited to comment.
Court orders
#- 1.Appeal allowed; all orders of Sergon J dated 28th April 2006 set aside.
- 2.An order of certiorari granted quashing the Minister's decision in Kenya Gazette Notice No. 1013 of 17th February 2006 revoking the appellant's nomination as a councillor (prayer (a) of the notice of motion dated 24th February 2006).
- 3.Orders of prohibition (prayers (b) and (c)) refused as unnecessary.
- 4.Costs of the appeal and of the High Court awarded to the appellant, payable by the 1st Respondent; the other parties to bear their own costs.
- On appeal from
- High Court of Kenya at Mombasa
- H.C. Misc. Civil Application No. 158 of 2006
- Jurisdiction invoked
- First appeal to the Court of Appeal from the High Court in a judicial review matter (Law Reform Act s 8(2) and Order 53 of the Civil Procedure Rules proceedings); no Article 163(4)(a) certification invoked in the judgment.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "TAIB A. TAIB v MINISTER FOR LOCAL GOVERNMENT [2007] KECA 345 (KLR)", Case Analysis (2007). Civil Appeal 107 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/345/eng@2007-05-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.