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Court of AppealPartially AllowedCivil Appeal 107 of 2006· [2007] KECA 345 (KLR)

TAIB A. TAIB v MINISTER FOR LOCAL GOVERNMENT [2007] KECA 345 (KLR)

Court of Appeal of Kenya
4 May 2007
16,909 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~68 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Court of Appeal at Nairobi (Omolo, Githinji and Waki, JJA) allowed, by a 2-1 majority, an appeal by Taib Ali Taib, a nominated councillor and elected Mayor of the Municipal Council of Mombasa, against the decision of Sergon J dismissing his judicial review application challenging the Minister for Local Government's revocation of his nomination by Gazette Notice No. 1013 of 17th February 2006. Omolo JA held that the proviso to section 27(2) of the Local Government Act, which empowered the Minister to terminate a nominated councillor's appointment at will, conflicted with the criteria and principles of section 33 of the Constitution as imported into the Act by section 26(2), and was void to that extent; he further held that the notice was not delivered in accordance with section 267 of the Act and that the rules of natural justice applied. Waki JA, while agreeing with Sergon J that the Minister possessed the revocation power, found the Gazette publication premature and of no legal effect because none of the priority modes of service under section 267 had been attempted. Githinji JA dissented, upholding the Minister's power and finding substantial compliance. The majority set aside the orders of the High Court and granted only an order of certiorari quashing the revocation; prohibition was refused as unnecessary. Costs of the appeal and of the High Court were awarded to the appellant against the 1st Respondent, the other parties bearing their own costs.

Key legal issues

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01

Power of the Minister to revoke a nominated councillor's appointment

Holding

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.

Reasoning

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.

p. 5
02

Delivery of the notice of termination under section 27(2) read with section 267

Holding

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.

Reasoning

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.

p. 7
03

Application of the rules of natural justice

Holding

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.

Reasoning

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.

p. 7

Legal principles established

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  • 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

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  1. 1.Appeal allowed; all orders of Sergon J dated 28th April 2006 set aside.
  2. 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. 3.Orders of prohibition (prayers (b) and (c)) refused as unnecessary.
  4. 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.

Authorities

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Legislation

  • Constitution of Kenya (pre-2010)section 33
  • Constitution of Kenya (pre-2010)section 3
  • Constitution of Kenya (pre-2010)section 30
  • Constitution of Kenya (pre-2010)section 16(3)(a)
  • Constitution of Kenya (pre-2010)section 47
  • Local Government Act, Chapter 265 Laws of Kenyasection 26
  • Local Government Act, Chapter 265 Laws of Kenyasection 26(2)
  • Local Government Act, Chapter 265 Laws of Kenyasection 27(2)
  • Local Government Act, Chapter 265 Laws of Kenyasection 13(1)
  • Local Government Act, Chapter 265 Laws of Kenyasection 152
  • Local Government Act, Chapter 265 Laws of Kenyasection 39
  • Local Government Act, Chapter 265 Laws of Kenyasection 267
  • Civil Procedure RulesOrder 53; Order 53 rule 1(1) and (3); Order 53 r 3(1)
  • Law Reform Actsection 8(2)
  • Interpretation and General Provisions Actsection 69
  • Act No. 7 of 1997 (IPPG constitutional amendments)
  • Act No. 10 of 1997
  • Act No. 11 of 1967section 2

Cases cited (14)

  • Republic vs. Emmanuel Karisa Maitha, Minister for Local Government, Ex Parte Hon. Otieno Karan
    H.C.C. Application no. 75 of 2004 (unreported)
  • Republic vs. Minister for Local Government & The Municipal Council of Mombasa, Ex Parte Benedict John Kamanzyu & 6 others
    Misc. Civil Application No. 917 of 2004 (unreported)
  • Kipkalya Kiprono Kones vs. Rep & ECK
    Civil Appeal No. 94 of 2005 (unreported)
  • Ex parte Joseph Okoth Waudi (R v Hon. E.K. Maitha & 2 others Ex parte Joseph Okoth Waudi)
    High Court Miscellaneous Application No. 802 of 2003 (unreported)
  • Antony Musila Mumangi vs. Emanuel Karisa Maitha & 2 others
    H.C. Misc. App. No. 669/04
  • Mumbi Ngaru v Social Development Party
    HCCC 1152/00 (unreported)
  • Durayappah vs. Fernando & Others
    [1967] 2 All E.R. 152
  • Karanja vs. Kabugi
    [1981] KLR 270
  • Mago (Magor) and St. Mellons Rural District Council vs. New Port Corporation
    [1952] AC 198
  • Thompson vs. Goold & Co.
    [1910] AC 409
  • Ngobit Estate Ltd. vs. Carnegie
    [1982] KLR 437
  • Attorney General for Northern Ireland vs. Gallagher
    [1963] AC 349
  • Re Wood's Estate, Ex parte Her Majesty's Commissioners of Works and Buildings
    [1886] 31 Ch 607
  • R v Commissioner of Cooperatives, Ex Parte Co-operative Savings Credit Society Ltd
    Civil Appeal No. 39/97 (unreported)
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

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Practical implications

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Frequently asked questions

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Cite this brief

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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.