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Court of AppealDismissedCivil Appeal Nos. 17 & 18 of 2015 (Consolidated)· [2015] KECA 397 (KLR)

County Assembly Of Kisumu & 2 others v Kisumu County Assembly Service Board & 6 others (Civil Appeal 17 & 18 of 2015) [2015] KECA 397 (KLR)

Court of Appeal
6 October 2015
David Kenani MaragaD.K. MaragaDMD.K. MusingaAMA.K. Murgor
10,081 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~40 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed county assemblies cannot suspend their service boards or impeach a Speaker without strictly following due process.

What this practically means

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Executive summary

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This consolidated appeal arose from the Kisumu County Assembly's suspension of the Kisumu County Assembly Service Board, redeployment of the interim Clerk and Assistant Clerk, and impeachment of the Speaker, Anne Atieno Adul, all set aside by Wasilwa, J. of the ELRC. The Court of Appeal, in a first appeal limited to matters of law under Section 17(2) of the Industrial Court Act, dismissed the appeal and substantially affirmed the judgment below. It held that a County Assembly Service Board is a body corporate and a 'person' under Article 260 entitled to enforce constitutional rights even against another State organ, distinguishing the County Government of Meru decision. It held that the ELRC had jurisdiction: there is no stand-alone constitutional court in Kenya; the removal of a Speaker is quasi-judicial and subject to supervisory jurisdiction; and an employer/employee relationship exists between a County Assembly and its Speaker, whose election is akin to appointment. The court held that County Assemblies have no authority to suspend Service Boards, and that the interim Clerk lacked the requisite post-graduation experience and academic qualifications. On due process, although the DVD evidence was inadmissible under Section 106B of the Evidence Act for want of a certificate, independent affidavit evidence showed the Speaker was denied valid notice signed by a third of members, adequate time to respond, and access to the Chamber; the Assembly had also knowingly disobeyed a court order. The impeachment was therefore null and void. Costs were awarded to the 2nd, 6th and 7th respondents against the appellants and the 3rd and 4th respondents jointly and severally.

Key legal issues

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01

Competence of a petition by a corporate State organ

Holding

The County Assembly Service Board is a 'person' under Article 260 and may enforce constitutional rights even against another State organ; the County Government of Meru case was distinguished

Reasoning

Section 12 of the County Governments Act establishes the Board as a body corporate, and Article 260 defines 'person' to include incorporated bodies. The Board did not itself claim Bill of Rights relief; the natural person co-petitioner did. No constitutional or statutory provision bars a State organ from enforcing constitutional rights against another State organ, so the persuasive High Court authority relied on by the appellants was distinguishable.

p. 4
02

ELRC jurisdiction over constitutional questions and over the Speaker's impeachment

Holding

The ELRC, having the status of the High Court, may determine constitutional issues arising within its domain, and the removal of a Speaker is quasi-judicial, falling within its supervisory jurisdiction

Reasoning

There is no stand-alone constitutional court in Kenya; under Articles 22 and 23 every court may enforce rights within its jurisdiction. Removal of a Governor or Speaker under the County Governments Act is quasi-judicial, so under Article 165(6) supervisory logic the ELRC may interrogate it. Separation of powers does not immunise unconstitutional legislative acts from judicial review.

p. 7
03

Employer/employee relationship between a Speaker and a County Assembly

Holding

Such a relationship exists; the Speaker's election is akin to an appointment creating a contract of service

Reasoning

The determinant is the existence of a contract of service as defined in Section 2 of the Employment Act, not the manner of assumption of office. The Speaker chairs the County Assembly Service Board and manages House business, roles akin to those of a managing director, so the election is akin to an appointment creating an employer/employee relationship.

p. 9
04

Powers of a County Assembly over the County Assembly Service Board

Holding

The suspension of the Board and the redeployment of the interim Clerk and Assistant Clerk by the Assembly and County Executive were null and void

Reasoning

County Assembly Service Boards are autonomous State corporations established under Section 12 of the County Governments Act, not subordinate to County Assemblies. The mandate to establish offices and deploy officers vests in the Boards, so the Assembly's suspension of the Board and the Executive's redeployment of the 6th and 7th respondents had no legal basis.

p. 9
05

Admissibility of electronic evidence

Holding

The DVD evidence was inadmissible for failure to meet the Section 106B conditions, including the certificate requirement

Reasoning

Section 106B of the Evidence Act imposes mandatory conditions for the admissibility of computer output, including a certificate identifying the electronic record and describing its production. The photojournalist's affidavit did not meet that threshold. However, the trial court's outcome stood on other affidavit evidence.

p. 12
06

Due process in the impeachment of the Speaker

Holding

The impeachment was null and void: no valid notice, insufficient time to respond, and denial of the right to be heard

Reasoning

The notice was signed by only one member contrary to the one-third requirement; the notice and reminder were served on the day of the debate contrary to the Standing Orders' three-day requirement; and the Speaker was physically denied access to the Chamber. The court disbelieved the Sergeant at Arms and found the appellants had also knowingly disobeyed a court order restraining the impeachment.

p. 15

Legal principles established

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  • A State organ can enforce its constitutional rights against another State organ
  • County Assemblies have no constitutional or statutory authority to suspend County Assembly Service Boards, which are autonomous State corporations
  • There is an employer/employee relationship between a County Assembly and its Speaker, so the ELRC has jurisdiction over disputes concerning the Speaker
  • Removal of a Speaker of a County Assembly is quasi-judicial in nature and subject to the supervisory jurisdiction of the High Court and the ELRC; separation of powers is no bar to reviewing unconstitutional legislative acts
  • Electronic evidence under Section 106B of the Evidence Act is admissible only where the statutory conditions, including a certificate, are satisfied
  • Impeachment procedural provisions must be strictly complied with, including valid notice signed by at least a third of members and sufficient time to respond
  • A party who knows of a court order cannot disobey it on the view that it is null or irregular

Court orders

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  1. 1.Finding that the Kisumu County Assembly Service Board is a 'person' under Article 260 of the Constitution entitled to seek redress even against another State organ, and that the petition was competent
  2. 2.Finding that there is an employer/employee relationship between a County Assembly and its Speaker and that the ELRC had jurisdiction to determine the petition
  3. 3.Finding that the suspension of the Kisumu County Assembly Service Board and the redeployment of the 6th and 7th respondents was null and void
  4. 4.Finding that Eliud Owen Ojuok was not academically qualified to be appointed interim Clerk of the Kisumu County Assembly
  5. 5.Finding that the Kisumu County Assembly did not follow due process in the impeachment of its Speaker and that her removal was null and void
  6. 6.Dismissal of the appeals with costs to the 2nd, 6th and 7th respondents against the appellants and the 3rd and 4th respondents jointly and severally

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 2(1), 22, 23, 28, 31, 35, 40, 41, 47, 50, 50(1), 117, 162, 165(3), 165(6), 178(1), 178(3), 181, 236(b), 260
  • County Governments ActSections 9(4), 11, 11(2), 11(4), 12, 12(2), 12(7), 13(2), 17, 29, 33, 59-69
  • Industrial Court ActSections 12, 12(1)(a), 17(2)
  • National Assembly (Powers and Privileges) ActSections 12, 29
  • Evidence ActSections 106B, 107
  • Employment Act, 2007Section 2
  • Kisumu County Assembly Standing OrdersStanding Orders 58, 63
  • Parliamentary Powers and Privileges Bill, 2014

Cases cited (20)

  • Peter Munya v. Dickson Mwenda Kithinji & 2 Others
  • The County Government of Meru v. The Ethics and Anti-corruption Commission
  • Martin Nyaga Wambora & Others v. Speaker of the Senate & Others
  • Speaker of the Senate & Another v. Attorney General & 4 Others
  • Doctors For Life International v. Speaker of The National Assembly And Others
  • Hon. Martin Nyaga Wambora v. The Speaker, County Assembly of Embu
  • Prof. Daniel N. Mugendi v. Kenyatta University & Others
  • United States International University (USIU) v. The Attorney General & Others
  • Judicial Service Commission v. Shollei
  • Jefferson Kalama Kengha & 2 Others v. Republic
  • Motor Vessel “SS Lillian”
  • Nick Githinji Ndichu v. Clerk Kiambu County Assembly & Another
  • Peter Kingoina v. County Assembly of Nyamira
  • Union Insurance Company of Kenya Ltd v. Ramzan Abdul Danji
  • Bernard Muia Tom Kiala v. Speaker of the County Assembly of Machakos & 4 Others
  • County Government of Nyeri & Another v. Cecilia Wangechi Ndungu
  • Kanda v. Government of Malaya
  • Goldberg v. Kelly
  • Hadkinson v. Hadkinson
  • Selvarajan v Race Relations Board
On appeal from
Employment & Labour Relations Court at Kisumu
Industrial Petition No. 297 of 2014
Jurisdiction invoked
First appeal under Section 17(2) of the Industrial Court Act, limited to matters of law

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (9)

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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, "County Assembly Of Kisumu & 2 others v Kisumu County Assembly Service Board & 6 others (Civil Appeal 17 & 18 of 2015) [2015] KECA 397 (KLR)", Case Analysis (2015). Civil Appeal Nos. 17 & 18 of 2015 (Consolidated). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/397/eng@2015-10-06

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