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Court of AppealPartially AllowedCivil Appeal No 107 of 2006

Taib v Minister For Local Government & 4 others (2008) 3 KLR (EP) 433 [2007] KECA 494 (KLR)

Court of Appeal
4 May 2007
17,851 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~71 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal restored a nominated councillor removed by the Minister, because the revocation notice was never properly served on him personally.

What this practically means

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Executive summary

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The Court of Appeal (Omolo, Githinji and Waki JJA) allowed the appeal of Taib Ali Taib, a NARC-nominated councillor and Mayor of the Municipal Council of Mombasa, against the decision of Sergon J dismissing his judicial review challenge to the Minister for Local Government's revocation of his nomination by Gazette Notice No 1013 of 17 February 2006. The court was divided. Omolo JA, constituting the majority with Waki JA, held that the proviso to section 27(2) of the Local Government Act, conferring an unbridled discretion on the Minister to terminate a nominated councillor's tenure, conflicts with the criteria and principles of section 33 of the Constitution incorporated into section 26(2) of the Act, and is void to that extent. Independently, both majority judges held that service of the revocation notice by Gazette publication alone contravened section 267 of the Act, which prescribes personal service, post or affixing in descending priority, with Gazette plus local-newspaper publication available only where those modes are impossible; the purported termination was consequently null and void. Omolo JA further held natural justice required notice of the charge and an opportunity to comment. Githinji JA dissented, upholding the validity of the revocation power and applying substantial compliance to the service defect. By majority, the appeal was allowed, the superior court's orders set aside, and certiorari granted quashing the Gazette notice; prohibition was refused as unnecessary. Costs of the appeal and the High Court were awarded to the appellant against the first respondent only, the other parties bearing their own costs.

Key legal issues

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01

Whether the proviso to section 27(2) of the Local Government Act empowering the Minister to terminate a nominated councillor is unconstitutional

Holding

Per the majority (Omolo and Waki JJA, in different ways), the appeal succeeded; Omolo JA held the proviso inconsistent with section 33 of the Constitution and void to that extent; Waki JA, though upholding the power as constitutionally valid, held its purported exercise invalid on service grounds. Githinji JA dissented, holding the proviso valid and unambiguous.

Reasoning

Omolo JA reasoned that section 26(2) imports the criteria and principles of section 33 of the Constitution into the nomination of councillors; since the President cannot revoke a nominated MP's appointment, the Minister cannot hold an unbridled revocation power over councillors without Parliament qualifying section 26(2). By section 3 of the Constitution, the inconsistent proviso is void. Githinji JA countered that incorporation by reference writes section 33 into the Act, making section 33 inoperative as a constitutional provision in that context, and that courts cannot legislate under the guise of interpretation.

p. 7
02

Whether notice of revocation published only in the Kenya Gazette satisfied the requirement of notice in writing 'delivered to the councillor'

Holding

The majority held it did not. Section 267 of the Act prescribes personal service, post, or affixing, with Gazette plus local-newspaper publication available only where those modes are impossible; no evidence of impossibility existed, and publication in the Gazette alone was without the additional local newspaper publication required by paragraph (d).

Reasoning

The word 'deliver' imports handing over to the addressee. Section 267 sets service modes in descending priority; paragraph (d) is a last resort requiring publication in the Gazette AND in at least one newspaper circulating in the local authority's area. The Minister made no attempt at the primary modes and published only in the Gazette, so the purported termination never took effect and the office never became vacant. Githinji JA dissented, applying substantial compliance and the de minimis principle since the appellant knew of the revocation the same day.

p. 27
03

Whether the rules of natural justice applied to the Minister's revocation decision

Holding

Omolo JA held that natural justice applies unless expressly excluded by statute, found nothing in the Act excluding it, and held the Minister must give the affected councillor the charge and invite comments before terminating the nomination.

Reasoning

Nominated councillors do not serve at the pleasure of the Minister; placing their tenure at his pleasure would confirm the proviso's unconstitutionality. Since the appellant was removed as an individual councillor rather than a whole council dissolved (as in Durayappah v Fernando), audi alteram partem applied and the revocation was null and void for its breach.

p. 9

Legal principles established

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  • A written notice of revocation required by the proviso to section 27(2) of the Local Government Act must be delivered to the councillor personally in accordance with section 267(a)-(c) of the Act; publication in the Kenya Gazette alone is an improper mode of service of no legal effect where personal service was not shown to be impossible.
  • A Minister exercising a statutory power to terminate a nomination must comply with the rules of natural justice - give the affected councillor the charge warranting termination and invite his comments - unless the statute expressly or by necessary implication excludes them.
  • Failure to comply with statutory requirements for service renders the purported termination of a nominated councillor ipso facto null and void.

Court orders

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  1. 1.Appeal allowed
  2. 2.All the orders made by Sergon J on 28 April 2006 set aside
  3. 3.An order of certiorari granted, quashing the decision of the Minister for Local Government contained in Kenya Gazette Notice No 1013 of 17 February 2006 revoking the nomination of the appellant as a councillor (prayer (a) of the notice of motion dated 24 February 2006)
  4. 4.Orders of prohibition (prayers (b) and (c)) refused as unnecessary
  5. 5.Costs of the appeal and of the High Court awarded to the appellant, payable by the first respondent; the other parties to bear their own costs of the proceedings both in the Court of Appeal and the superior court
On appeal from
High Court of Kenya, Mombasa
HC Misc Civil Application No 158 of 2006 (originally Nairobi HC Misc Application No 94 of 2006)
Jurisdiction invoked
Appellate jurisdiction of the Court of Appeal over a High Court judicial review decision (section 8(2) of the Law Reform Act; order 53 of the Civil Procedure Rules)

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 v Minister For Local Government & 4 others (2008) 3 KLR (EP) 433 [2007] KECA 494 (KLR)", Case Analysis (2007). Civil Appeal No 107 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/494/eng@2007-05-04

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