Republic v Clerk County Assembly of Baringo; Kamket (Ex parte) (Judicial Review Application 1 of 2015) [2015] KEELRC 567 (KLR)
The bottom line
#Kenya's Employment Court ruled Baringo County Assembly unlawfully removed its Speaker because he was denied a chance to be heard before the full Assembly.
What this practically means
#Executive summary
#Key legal issues
#Whether the correct parties were cited
The Clerk was an appropriate and proper party; failure to cite the County Assembly was a curable irregularity.
Judicial review is sui generis under Order 53; the Clerk, who receives motions and reviews public petitions under the Standing Orders, could defend and represent the collective County Assembly where the Speaker himself is the complainant. The Respondent neither suggested prejudice nor ably dealt with the issues despite the Assembly not being cited.
Whether the Court has jurisdiction over removal of a Speaker of a County Assembly
Yes, under Article 162 and section 12(1)(a) of the ELRC Act, though a Speaker is not an 'employee' under the Employment Act.
The jurisdiction flows from Article 162 and section 12 of the ELRC Act, which extend to 'disputes relating to employment and labour relations' including disputes arising out of employment, and is not limited by the Employment Act's definitions of employer, employee or contract of service. Office holders without contracts of service are nonetheless employees for these purposes.
Whether separation of powers bars judicial intervention
No; the Court may intervene where procedural impropriety in removal of a Speaker is alleged.
A county assembly is a public body and its removal procedures are governed by statute and Standing Orders. Where the applicable procedures are not followed, the disadvantaged party has recourse to the courts under public law; there is no political thicket beyond constitutional reach.
Legality of removal via public petition and the procedure followed
The public petition itself was lawful, but the removal process was procedurally improper.
Section 15 of the County Governments Act and the Standing Orders permit receipt of public petitions, consistent with public participation. However, the applicant was entitled under section 11(4) of the Act and Standing Order 61(4) to respond to allegations on the floor of the Assembly; the Ad Hoc Committee invitation could not substitute that requirement.
Whether a fresh removal motion within 6 months of a failed motion was barred
Yes; the Assembly violated its internal procedures (Standing Order 47).
The February motion defeated by one vote and the March petition raised essentially the same grounds. The Assembly could not commence a fresh removal process before the lapse of six months on substantially the same grounds, and the Respondent made no meaningful response to this issue.
Legal principles established
#- Speakers of County Assemblies are not employees under the Employment Act definition but are office holders with access to the ELRC, whose removal disputes fall within section 12 of the ELRC Act and Article 162(2).
- A county assembly is an organ of state and a public body amenable to judicial review where procedural impropriety is alleged.
- Non-joinder or misjoinder of parties is an irregularity, not fatal to proceedings.
Court orders
#- 1.Judicial review orders in terms of prayers 1 and 2 of the Notice of Motion dated 20 March 2015 granted (orders of certiorari and prohibition as sought)
- 2.The motion dated 29 May 2015 seeking review/interpretation of the orders of 20 March 2015 dismissed with no order as to costs
- 3.Each party to bear their own costs
- Jurisdiction invoked
- Article 162(2) of the Constitution and section 12 of the Employment and Labour Relations Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Clerk County Assembly of Baringo; Kamket (Ex parte) (Judicial Review Application 1 of 2015) [2015] KEELRC 567 (KLR)", Case Analysis (2015). Judicial Review Application (Nakuru), Notice of Motion dated 20 March 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/567/eng@2015-07-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.