Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealPartially AllowedCivil Appeal (Constitutional Appeal) – appeal against Bungoma High Court Constitutional Petition No. 4 of 2014· [2017] KECA 631 (KLR)

County Assembly of Bungoma & 2 others v Nendela & 2 others (Civil Appeal 336 of 2014) [2017] KECA 631 (KLR)

Court of Appeal of Kenya
24 March 2017
DMD. K. MusingaSKS. Gatembu KairuAMA. K. Murgor
5,429 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal upheld county assemblies' power to investigate executive officers, but ruled they must give fair notice and a chance to be heard.

What this practically means

#

Executive summary

#
The Court of Appeal at Eldoret (Musinga, Gatembu Kairu and Murgor, JJA) allowed an appeal against a judgment of the High Court at Bungoma (Mabeya, J) delivered on 7th October 2014 in Constitutional Petition No. 4 of 2014. The High Court had declared Section 40(3) of the County Governments Act, 2012 void for violating Article 50(1) of the Constitution, nullified the Select Committee's proceedings against Stephen Peter Nendela, a County Executive Committee member for roads and public works, quashed the committee's decisions by certiorari, and barred the County Assembly of Bungoma from executing county executive policy functions. The Court of Appeal coalesced thirteen grounds into two issues: the constitutionality of Section 40(3) and the propriety of the reliefs. Holding that Article 50(2) applies to criminal trials and not to disciplinary or investigative proceedings, the Court applied its own decisions in the Shollei and Mutava cases, found that the select committee plays an investigative role within the assembly's five-tiered oversight process, and held the respondents had not established unconstitutionality. It nevertheless agreed Nendela was treated unfairly: notice was too short and his request for deferral was refused. The proportionate remedy was directions securing adequate notice and representation, not halting the assembly's oversight role. The High Court judgment was set aside in its entirety and each party was ordered to bear its own costs.

Key legal issues

#
01

Whether Article 50(1) and (2) of the Constitution applies to investigations by a select committee of a county assembly into the removal of a County Executive Committee member

Holding

It does not. Such proceedings are disciplinary/investigative, not judicial or criminal, so an executive committee member is not an 'accused person' entitled to the full breadth of Article 50(2) rights; fairness is guaranteed by natural justice and Article 47.

Reasoning

The Court adopted its own reasoning in the Shollei and Mutava decisions that Article 50 is a term of art applying exclusively to judicial proceedings and criminal trials. Section 40 proceedings are a disciplinary process in tandem with the assembly's oversight role. The learned Judge therefore misdirected himself in striking down Section 40(3) on Article 50 grounds, and the declaration of unconstitutionality could not stand.

p. 8
02

Whether Nendela was treated fairly notwithstanding the validity of Section 40(3)

Holding

He was not. The notice served on 14th April 2014 for a hearing on 15th April was too short, and denying his request for deferral amounted to denying his statutory right to appear and be represented.

Reasoning

The motion under Section 40(2) was passed on 25th March 2014 yet notification was not served until 4.30 pm on 14th April. The request for one day's deferral to prepare and consult counsel was reasonable. The committee's strict statutory timelines should have spurred optimal use of time, not undermining the member's right to appear under Section 40(3).

03

What remedy was appropriate for the breach of fair procedure

Holding

The court should have issued directions ensuring adequate notice and representation rather than restraining the select committee and assembly from performing their statutory oversight functions.

Reasoning

Relying on Article 165(7), the Court held the High Court had jurisdiction to grant relief but chose the wrong remedy. Halting the entire process was disproportionate; the proportionate course was directions that Nendela's Section 40(3) rights be respected. The High Court judgment was accordingly set aside in its entirety.

p. 10

Legal principles established

#
  • Article 50(2) of the Constitution applies to criminal trials and not to civil litigation or disciplinary proceedings; fairness in disciplinary or investigative proceedings before a select committee is governed by the rules of natural justice and Article 47, not the full panoply of Article 50 rights.
  • The five-tiered removal process under Section 40 of the County Governments Act, including investigation by a select committee of the county assembly, is not inherently unconstitutional, but the member under investigation must be given adequate notice of proceedings and the right to appear and be represented.

Court orders

#
  1. 1.The appeal succeeds
  2. 2.The Judgment of the High Court delivered on 7th October 2014 is set aside in its entirety
  3. 3.Each party shall bear its own costs

Authorities

#

Legislation

  • Constitution of Kenya, 2010Article 1(1), 1(2), 1(3), 1(4), 2(3), 23, 47, 50(1), 50(2), 50(2)(a)(b)(c), 50(c)(g)(k), 152(6), 165(3), 165(7), 174(a), 174(i), 176, 183(1), 183(3), 185(3), 185(4), 22(1), 236(b), 258(1), 259
  • County Governments Act, 2012Section 9(2)(a) and (b), 39(1), 39(2), 40(1), 40(2), 40(3), 40(4), 40(5)(b), 40(6)
  • County Assembly Standing OrdersSection 62(1) and 63(1)

Cases cited (10)

  • Narok County Government and another v Richard Bwogo Birir & another
    [2015] eKLR
  • Judicial Service Commission v Mbalu Mutava & Another
    [2015] eKLR
  • Judicial Service Commission v Gladys Boss Shollei & Another
    [2015] eKLR
  • Municipal Council of Nakuru v Reliable Concrete Works Limited
    [2014] eKLR
  • Martin Nyaga Wambora & 4 others v Speaker of the Senate & 6 others
    [2014] eKLR
  • Thomson v Canada (Deputy Minister of Agriculture)
    [1992] 1 SCR 385, 1992 CanLII 121 (SCC)
  • R v MacFarlane
    (1923) HCA 36 (1923) 32 CLR 518
  • Richard Bwogo Birir v Narok County Government
    Petition No. 1 of 2014
  • County Government of Nyeri and another v Cecilia Wangechi Ndungu
    [2015] eKLR
  • Ndyanabo v AG of Tanzania
    [2001] EA 495
On appeal from
High Court of Kenya at Bungoma
Constitutional Petition No. 4 of 2014
Jurisdiction invoked
First appeal to the Court of Appeal under Article 164 of the Constitution and the Court of Appeal Act, exercising jurisdiction under Articles 22 and 165(3) as the court below had done (appellate review of a constitutional petition)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "County Assembly of Bungoma & 2 others v Nendela & 2 others (Civil Appeal 336 of 2014) [2017] KECA 631 (KLR)", Case Analysis (2017). Civil Appeal (Constitutional Appeal) – appeal against Bungoma High Court Constitutional Petition No. 4 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/631/eng@2017-03-24

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