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ELRCPartially AllowedNotice of Motion dated 24th November 2014 (Cause) - Employment and Labour Relations Court· [2015] KEELRC 74 (KLR)

Jacob Ngwele Muvengei v Speaker Nairobi City Council Assembly & 2 others [2015] KEELRC 74 (KLR)

Employment and Labour Relations Court
21 September 2015
4,641 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled the Nairobi Assembly Speaker had no power to suspend the County Assembly Clerk alone, protecting the clerk's job and awarding him costs.

What this practically means

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Executive summary

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The Claimant, Clerk of the Nairobi City County Assembly, moved the Employment and Labour Relations Court by Notice of Motion dated 24th November 2014 seeking conservatory orders staying his suspension by the 1st Respondent (the Speaker) on 20th November 2014, and prohibitory orders restraining the Respondents from suspending, interdicting, terminating or interfering with his employment pending determination of his suit. The suspension followed allegations of anomalies in Assembly accounts held with Family Bank, but was revoked on 24th November 2014 after the suit was filed. The court framed three issues: whether conservatory orders should issue, whether the Claimant was required to pursue the appeal mechanism under section 77 of the County Government Act, and whether he had established a good case. The court held that the Speaker's functions and those of the County Assembly Service Board are legally distinct; the suspension letter signed in the Speaker's capacity was ultra vires and a gross error, since appointment and supervision of the Clerk vest in the Board. It further held that due process is required before removal from public office and that revocation does not cure the arbitrary action, justifying conservatory orders given continuing apprehension. Section 77 does not oust the Court's jurisdiction over Article 41 employment rights. The court restrained the Respondents from interfering with the Claimant's employment regarding matters in the 20th November 2014 letter, unless lawfully disciplined on substantially different and proven misconduct, declared the subject settled, and awarded costs to the Claimant.

Key legal issues

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01

Whether the 1st Respondent had authority to suspend the Claimant

Holding

The Speaker, acting in his capacity as Speaker, had no mandate to suspend the Clerk; the appointing and supervising authority is the County Assembly Service Board, and the suspension letter signed in the Speaker's capacity was ultra vires and a gross error.

Reasoning

The court distinguished the separate legal functions of Speaker and Board chairperson under section 12 of the County Governments Act. Since respondents admitted the appointing authority was the Board with approval of the Assembly, the Speaker acting singly could not supervise or suspend the Clerk. The letter of 20th November 2014 was signed for speaker-chairman, an anomaly in law, following John Mining Temoi on the distinctness of the Speaker and the Assembly/Board.

p. 5
02

Whether conservatory orders should issue notwithstanding revocation of the suspension

Holding

Yes; the revocation came after the suit was filed and subsequent threats to the Claimant's employment justified conservatory orders.

Reasoning

The court found the admission of the dismissal and revocation letters, plus subsequent efforts to challenge the Claimant's employment, created reasonable apprehension of arbitrary action. Due process under Article 236 and fairness requirements mean arbitrariness must be stopped; leaving such conduct unaddressed invites future abuse. Reliance placed on Richard Bwogo Birir and Masetlha on fairness in exercise of public power.

p. 6
03

Whether section 77 of the County Government Act required the Claimant to appeal to the Public Service Commission first

Holding

No; section 77 applies to decisions of the County Public Service Board, which was not the decision maker here, and does not oust the Court's jurisdiction.

Reasoning

The challenged decision was by the Speaker, not the County Public Service Board or the 2nd Respondent. The Claimant is an employee of the 2nd Respondent, not the County Public Service Board. The court read section 77 as non-mandatory and held constitutional employment rights claims under Article 41 fall within this Court's original jurisdiction regardless.

p. 7

Legal principles established

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  • The functions of the Speaker of a County Assembly and those of the County Assembly Service Board, over which the Speaker presides, are separate and distinct in law, and a decision of the Board must be communicated on behalf of the Board, not the Speaker.
  • Removal from public office is chained to due process of law; the pleasure doctrine has been replaced by due process.
  • Section 77 of the County Government Act does not oust the Court's jurisdiction over constitutional employment rights claims.

Court orders

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  1. 1.The Respondents are hereby restrained from suspending, interdicting, terminating or otherwise interfering with the contract of employment of the Claimant with regard to matters outlined in the letter issued to the Claimant and dated 20th November 2014 unless otherwise lawfully disciplined on account of substantially different and proven misconduct
  2. 2.With the issuance of the orders as above, the subject of the suit is hereby settled
  3. 3.Costs herein awarded to the claimant
Jurisdiction invoked
Article 23 of the Constitution and section 12(3) of the Employment and Labour Relations Court Act; Article 41 of the Constitution as original jurisdiction over employment and labour relations claims

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, "Jacob Ngwele Muvengei v Speaker Nairobi City Council Assembly & 2 others [2015] KEELRC 74 (KLR)", Case Analysis (2015). Notice of Motion dated 24th November 2014 (Cause) - Employment and Labour Relations Court. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/74/eng@2015-09-21

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