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ELRCPartially AllowedJudicial Review Application (Nakuru), Notice of Motion dated 20 March 2015· [2015] KEELRC 567 (KLR)

Republic v Clerk County Assembly of Baringo; Kamket (Ex parte) (Judicial Review Application 1 of 2015) [2015] KEELRC 567 (KLR)

Employment and Labour Relations Court
31 July 2015
5,493 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The ex parte applicant, the first Speaker of the County Assembly of Baringo, challenged his removal from office on 18 March 2015 by way of judicial review orders of certiorari and prohibition. The removal followed a public petition by citizens of Arabal, considered by an Ad Hoc Committee, after a removal motion had been defeated by one vote on 11 February 2015. The Respondent raised preliminary objections: that the wrong party was cited, that a Speaker was not an employee and the Court lacked jurisdiction, that the County Assembly was not amenable to judicial review, and that the proceedings were an abuse of process given pending Eldoret litigation. The Court held that the Clerk was a proper party and non-joinder of the Assembly was a curable irregularity. It held that although a Speaker is not an 'employee' under the Employment Act, 2007, disputes over a Speaker's removal fall within the exclusive jurisdiction conferred by Article 162(2) of the Constitution and section 12 of the Employment and Labour Relations Court Act. A county assembly is an organ of state amenable to review for procedural impropriety. On the merits, the public petition route was lawful, but the removal was procedurally improper because the applicant was not accorded an opportunity to make representations before the Plenary, and the fresh removal process within six months of a failed motion on substantially the same grounds violated Standing Order 47. A later motion seeking review/interpretation of the leave orders, based on the Eldoret judgment, was dismissed as that judgment concerned a different cause of action. The judicial review motion succeeded; each party was to bear its own costs.

Key legal issues

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01

Whether the correct parties were cited

Holding

The Clerk was an appropriate and proper party; failure to cite the County Assembly was a curable irregularity.

Reasoning

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.

p. 5
02

Whether the Court has jurisdiction over removal of a Speaker of a County Assembly

Holding

Yes, under Article 162 and section 12(1)(a) of the ELRC Act, though a Speaker is not an 'employee' under the Employment Act.

Reasoning

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.

p. 7
03

Whether separation of powers bars judicial intervention

Holding

No; the Court may intervene where procedural impropriety in removal of a Speaker is alleged.

Reasoning

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.

p. 8
04

Legality of removal via public petition and the procedure followed

Holding

The public petition itself was lawful, but the removal process was procedurally improper.

Reasoning

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.

p. 9
05

Whether a fresh removal motion within 6 months of a failed motion was barred

Holding

Yes; the Assembly violated its internal procedures (Standing Order 47).

Reasoning

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.

p. 10

Legal principles established

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  • 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

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  1. 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. 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. 3.Each party to bear their own costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 50, 128, 162(2), 178
  • County Governments Actsections 2, 11, 11(4), 13, 15
  • Employment and Labour Relations Court Actsection 12
  • Employment Act, 2007section 2
  • Law Reform Actnot specified
  • Civil Procedure RulesOrder 1 rule 9; Order 53 rule 3
  • Industrial Court Procedure Rules, 2010not specified
  • Standing Orders of the County Assembly of BaringoStanding Orders 45, 47, 61, 61(4), 197, 197(1), 197(3)

Cases cited (7)

  • Peter Kingoina v County Assembly of Nyamira
    (2014) eKLR
  • Richard Bwogo Birir v Narok County Government & 2 Ors
    (2014) eKLR
  • Nick Githinji Ndichu v Clerk, Kiambu County Assembly & Anr
    (2014) eKLR
  • Kisumu County Assembly Service Board & Anne Atieno Adul v Kisumu County Assembly Service Board & 4 Or
    (2014) eKLR
  • Republic v National Social Security Fund Board of Trustees & Another ex parte Town Council of Kikuyu
    (2014) eKLR
  • Republic ex parte Minister for Finance & the Commissioner of Insurance v Charles Lutta Kasamani t/a Kasamani & Co. Advocates & Another
    Civil Appeal (Application) No. NAI. 281 of 2005
  • Republic v Clerk, County Assembly of Baringo ex parte William Kamket
    Eldoret Judicial Review Application No. 8'B' of 2014
Jurisdiction invoked
Article 162(2) of the Constitution and section 12 of the Employment and Labour Relations Court Act

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, "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.