Nick Githinji Ndichu v Clerk, Kiambu County Assembly & 3 others [2018] KECA 80 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the appellant was afforded a fair hearing in the impeachment process
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.
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.
Whether the grounds for impeachment were valid
Yes - using public funds for a private trip, intimidating finance staff, and unprocedurally procuring the 3rd respondent's legal services were impeachable indiscretions.
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.
Whether the media publication was defamatory and attributable to the respondents
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.
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.
Legal principles established
#- 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
#- 1.The appeal is dismissed
- 2.Costs of the appeal awarded to the 1st and 2nd respondents
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.