Samuel Angasa Onuko v Speaker County Assembly Kisii County & 4 others [2014] KEELRC 1412 (KLR)
The bottom line
#The Employment and Labour Relations Court ruled that a Kisii MCA's constitutional petition can proceed, rejecting attempts to strike it out on technicality.
What this practically means
#Executive summary
#Key legal issues
#Sub judice
The petition is not sub judice; the parties, capacity and prayers in Petition No. 243/2014 are different
Section 6 requires the same matter in issue between the same parties litigating under the same title. Petition 243/2014 was filed by a private individual, not a Member of County Assembly, and sought different prayers. The present petitioner sues in his capacity as an MCA performing oversight, so the requirements of Section 6 are not met.
Double jeopardy / County Assembly impeachment
Impeachment proceedings in the County Assembly are not judicial proceedings and cannot bar a constitutional petition
Article 159(1) vests judicial authority in courts and tribunals. County Assemblies, though possessing powers akin to the High Court for enforcement of attendance under Article 195, do not exercise judicial authority. Separation of powers means the Assembly cannot be the High Court and vice versa; hearing the petition is not double jeopardy.
Locus standi
The petitioner, an elected MCA acting in his own interest and for his constituents, has standing under Articles 22(1) and 258
Article 22(1) and Article 258 confer capacity on every person, including persons acting in their own interest, as members of a group, or in the public interest. The petitioner acts personally and as MCA representing constituents. Section 12 of the Industrial Court Act does not confine the court to employer-employee disputes.
Leave under Order 53
Leave is unnecessary; the petition is brought under Articles 22, 23 and 165 and not under Order 53
The petition invokes Article 23(3) of the Constitution, not Order 53. The Mutunga Rules contain no requirement of leave for constitutional petitions. Judicial review differs from a constitutional petition, which involves wider constitutional interpretation, and Article 159(2)(d) requires justice without undue regard to procedural technicalities.
Legal principles established
#- Sub judice under Section 6 of the Civil Procedure Act arises only where the matter in issue is directly and substantially the same in a previously instituted suit between the same parties litigating under the same title
- Impeachment proceedings before a County Assembly are not judicial proceedings and do not raise double jeopardy in respect of court proceedings
- Every person has standing to institute constitutional proceedings under Articles 22(1) and 258 of the Constitution, including acting in the public interest or on behalf of a group
- No leave of court is required under Order 53 of the Civil Procedure Rules before instituting a constitutional petition, which is not a judicial review proceeding
Court orders
#- 1.Preliminary objection dated 15.10.2014 dismissed in its entirety
- 2.Petition to proceed on merit
- Jurisdiction invoked
- Articles 22, 23, 162(2) and Industrial Court Act s.12
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Solomon Kinuthia & 13 Others v Republic (on revision from ACC No. 22 of 2019, Ferdinard Ndungu Waititu Baba Yao & 12 Others)[2020] KEHC 9280 (KLR)29 Jan 2020
- Eunice Dolly Sande v Siaya County Government & 3 others [2015] KEELC 829 (KLR)[2015] KEELC 829 (KLR)5 Nov 2015
Cite this brief
#Cite this brief
Caselaw, "Samuel Angasa Onuko v Speaker County Assembly Kisii County & 4 others [2014] KEELRC 1412 (KLR)", Case Analysis (2014). Not stated in judgment (Industrial Court petition; Kisumu). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/1412/eng@2014-11-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.