Wambora v County Assembly Of Embu & 37 others (Civil Appeal 194 of 2015 & Constitutional Petition 77 & 8 of 2014 (Consolidated)) [2015] KECA 137 (KLR)

The Court held that although Article 163(7) names only the Supreme Court, stare decisis extends to the Court of Appeal vis-à-vis lower courts. Nyeri Civil Appeal No. 21 of 2014 had held the High Court has specific jurisdiction under Article 165(3)(d)(ii) and (iii) to determine whether removal was consistent with the Constitution and whether the Article 181 threshold was met. The High Court's complaint of missing evidence did not excuse it; the evidentiary burden lay on the County Assembly and Senate, whose information was especially within their knowledge.

Article 196(1)(b) and section 91 of the County Government Act obligate the County Assembly to facilitate public participation. The respondents' averments were general and unparticularised; no evidence was shown of dissemination of specific information regarding the removal motion. The High Court itself found the Standing Order 61 timeline an impediment yet concluded there was participation, an internally inconsistent position. The burden shifted to the County Assembly and Senate once the removal was established.

The High Court itself found the reappointment of the same committee members gave the impression that justice would not be seen to be done, yet held no prejudice was occasioned. The Court held this was error: the applicable test is the objective reasonable apprehension of a fair-minded and informed observer, not actual prejudice. Since the Senate was guided by the Committee's report, tainted committee impartiality meant actual prejudice could not be ruled out, breaching the right to fair administrative action under Article 47.

The charges related to tendering for stadium refurbishment and maize seed procurement, processes the Governor was not shown to have been involved in. Without evidence of complicity or collusion, the necessary nexus was nonexistent; the Governor could not bear personal responsibility for junior officers' acts and vicarious liability has no application. Accountability under section 30(3) of the County Governments Act alone does not establish nexus.

Section 33 merely operationalises Article 181 and prescribes the hierarchical and sequential procedure for removal: initiation by motion in the County Assembly, a two-thirds resolution, and transmission to the Senate. It does not exclude public participation; the obligation to facilitate participation arises from Article 196(1)(b) and Chapter VIII of the Act. The impugned Standing Order 61 timelines were the source of the participation deficiency.