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Court of AppealDismissedCivil Appeal No. 18 of 2016· [2018] KECA 80 (KLR)

Nick Githinji Ndichu v Clerk, Kiambu County Assembly & 3 others [2018] KECA 80 (KLR)

Court of Appeal
7 December 2018
7,539 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal upheld the impeachment of Kiambu's Assembly Speaker, confirming that strict legal procedure was followed and his defamation claim failed for lack of evidence.

What this practically means

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Executive summary

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The appellant, elected Speaker of the Kiambu County Assembly on 22 March 2013, was impeached on 25 February 2014 over his use of public funds for a private trip to Brazil and the unprocedural procurement of the 3rd respondent's legal services. His petition before the Employment and Labour Relations Court failed except for uncontested terminal benefits; he appealed only on the findings that his removal was lawful and procedural and that the media publication was not defamatory. The Court of Appeal confined itself to those two issues, expressly declining to entertain submissions on unfair termination and legitimate expectation. On the first issue, the court held that section 11 of the County Governments Act prescribes four cumulative conditions for removal of a Speaker - notice signed by one third of members, presiding by a member elected under section 9(4), an opportunity to be heard, and a 75% resolution - and that all were satisfied. The Hansard showed the appellant defending himself on the floor; as a lawyer, he never complained of short notice during the proceedings, and having chaired the Business Committee that approved the motion, he was estopped from attacking it. On the second issue, the court found no evidence attributing the Standard Newspaper article to the respondents and noted the publishers were never enjoined or called. It also observed that neither the Constitution nor the County Governments Act specifies grounds for removing a Speaker, and recommended legislative reform. The appeal was dismissed with costs to the 1st and 2nd respondents, affirming the decision of Nduma Nderi, J.

Key legal issues

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01

Whether the appellant was afforded a fair hearing in the impeachment process

Holding

Yes - notice was served, signed by 67 of 82 members, he was given an opportunity to respond on the floor, and he took it; the procedure was carried out according to the rule book.

Reasoning

The court traced each requirement of section 11 of the County Governments Act and Standing Orders 58, 63, 64, 83 and 228 to the facts: notice dated 24 February 2014 signed by 67 of 82 members, a procedural motion exempting the notice period, presiding by Hon. Antonny Kimani Macharia under section 11(3), and the Hansard recording the appellant's defence under section 11(4). As a lawyer, he made no complaint during proceedings, so he could not later claim denial of the right to be heard.

p. 6
02

Whether the grounds for impeachment were valid

Holding

Yes - using public funds for a private trip, intimidating finance staff, and unprocedurally procuring the 3rd respondent's legal services were impeachable indiscretions.

Reasoning

The court noted there are no statutory grounds for removal of a Speaker, leaving the matter to the Assembly's discretion, and recommended legislative reform. Nonetheless, the specific allegations here were serious and proved: the appellant admitted using public resources for the unofficial Brazil retreat; evidence showed he intimidated the finance department; and the procurement officer's unchallenged evidence established direct procurement of the 3rd respondent contrary to the Public Procurement and Disposal Act.

p. 7
03

Whether the media publication was defamatory and attributable to the respondents

Holding

No - there was no evidence of the source of the publication or of any nexus with the 1st and 2nd respondents, and the publishers were never enjoined or called.

Reasoning

The appellant relied on a non-existent Article 35(5); his actual claim was defamation, not access to information. He adduced no evidence of the source of the Standard article, no proof of mental anguish or odium, and no connection between the respondents and the publication. Following Phinelas Nyaga v Gitobu Imanyara, failure to call the publisher as a witness meant the balance-of-probabilities threshold was not met.

p. 7

Legal principles established

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  • Four statutory conditions must be met before a Speaker of a County Assembly may be lawfully removed: notice signed by one third of members, presiding by a member elected under section 9(4), an opportunity to be heard, and a 75% resolution.
  • In impeachment proceedings, due process must be followed to the letter and statutory procedural provisions must be strictly complied with.
  • A Speaker who chaired the County Assembly Business Committee approving his own removal motion and failed to raise procedural flaws then is estopped from raising them later.
  • A defamation claimant must prove the defendant was responsible for the publication; failure to enjoin or call the publisher as a witness is fatal to the claim.

Court orders

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  1. 1.The appeal is dismissed
  2. 2.Costs of the appeal awarded to the 1st and 2nd respondents

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 178(1)
  • Constitution of Kenya, 2010Article 178(3)
  • Constitution of Kenya, 2010Article 35(1), (2), (3)
  • Constitution of Kenya, 2010Article 47
  • Constitution of Kenya, 2010Article 50
  • Constitution of Kenya, 2010Article 27
  • Constitution of Kenya, 2010Article 236
  • County Governments Actsection 11(1), (2), (3), (4)
  • Employment Actsection 43(1)
  • Employment Actsection 47(5)
  • Public Procurement and Disposal Act, 2005section 29
  • Public Procurement and Disposal Act, 2005section 88
  • Kiambu County Assembly Standing OrdersStanding Orders 44(3)(e), 47, 58, 63, 64, 68, 81(1), 83, 228

Cases cited (5)

  • County Assembly of Kisumu & 2 Others v Kisumu County Assembly Service Board & 6 Others
    Civil Appeal No. 17 & 18 of 2015 (Consolidated)
  • Diana Kethi Kilonzo & Another v Independent Electoral and Boundaries Commission & 10 others
    (2013) EKLR
  • Phinelas Nyaga v Gitobu Imanyara
    (2013) eKLR
  • Selvarajan v Race Relations Board
  • Jedidah Njoki Kiarie v IEBC & Kiambu County Assembly Speaker
    Nairobi HC Petition No. 47 of 2014
On appeal from
Employment and Labour Relations Court at Nairobi
ELRC No. 11 of 2014
Jurisdiction invoked
First appeal from the Employment and Labour Relations Court under Article 164(3) of the Constitution / Court of Appeal appellate jurisdiction (judgment does not expressly cite the provision)

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, "Nick Githinji Ndichu v Clerk, Kiambu County Assembly & 3 others [2018] KECA 80 (KLR)", Case Analysis (2018). Civil Appeal No. 18 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/80/eng@2018-12-07

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