Nick Githinji Ndichu v Clerk, Kiambu County Assembly & another [2014] KEELRC 760 (KLR)
The bottom line
#Kenya's Industrial Court confirmed it can hear challenges to a county assembly speaker's removal, but refused to block the appointment of a replacement.
What this practically means
#Executive summary
#Key legal issues
#Whether the Industrial Court has jurisdiction over a dispute concerning the removal of a county assembly speaker
The Court found it has jurisdiction, holding that the speaker has a relationship with the County Assembly bearing the attributes of a contract of service - provision of services for a wage or salary - and that the method of acquiring the position (election rather than appointment) is immaterial.
Relying on Section 12(1) of the Industrial Court Act and the definition of 'contract of service' and 'employee' in Section 2 of the Employment Act, 2007, the Court held the law looks to substance, not mode of accession. The Petitioner provides services to the Assembly for a salary. The Court also has jurisdiction to interpret the Constitution and enforce fundamental rights as confirmed in USIU v Attorney General, approved in Mugendi v Kenyatta University. Accordingly the preliminary objection on employment relationship failed.
Whether the impeachment of a speaker is a justiciable political process
The impeachment question is justiciable; the Court cannot decline jurisdiction over disputes clearly delineated under the Constitution as within its purview.
Following the three-judge bench decision in Wambora and the Supreme Court's advisory opinion in the Senate case, Parliament and county assemblies must operate under the Constitution, and courts must assert constitutional supremacy where procedural requirements of the supreme law are violated. Justiciability depends on the facts of each case, but the Court must first satisfy itself of jurisdiction. The lawfulness of the speaker's removal is therefore justiciable.
Whether the temporary injunction restraining the filling of the speaker's position should be extended
The application was dismissed; although a prima facie case was shown, no irreparable harm was demonstrated and the balance of convenience favoured refusing the injunction.
Applying the settled conditions for interlocutory injunctions, the Court found an apparent infringement calling for explanation, but held damages would be an adequate remedy if the Petitioner succeeded. Unlike a governor's case, no deputy automatically fills the speaker's office, and standing order 4(2) bars all business until a new speaker is elected. An injunction would therefore halt the Assembly's operations, so the balance of convenience was against the order.
Legal principles established
#- The law is not concerned with the method of acquiring an employee; an elected official who serves under a contract of service, provides services for a wage or salary, falls within the Industrial Court's jurisdiction over employment disputes
- Whether the impeachment of a speaker of a county assembly was lawful is justiciable and the courts have jurisdiction to hear and determine the matter
Court orders
#- 1.The application to extend the temporary injunction pending the hearing and determination of the Petition is dismissed
- 2.Costs will be in the cause
- Jurisdiction invoked
- Article 162(2) of the Constitution as read with Section 12 of the Industrial Court Act, 2011
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nick Githinji Ndichu v Clerk, Kiambu County Assembly & another [2014] KEELRC 760 (KLR)", Case Analysis (2014). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/760/eng@2014-03-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.