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ELRCPartially AllowedChamber Summons dated 19 March 2015 (Eldoret Judicial Review Application No. 8 of 2014 referenced separately; instant case number not stated in judgment)· [2015] KEELRC 1296 (KLR)

William Kassait Kamket v Clerk County Assembly of Baringo [2015] KEELRC 1296 (KLR)

High Court of Kenya
20 March 2015
1,862 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court allowed Baringo's removed Speaker to challenge his removal but only paused parts of the replacement process.

What this practically means

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Executive summary

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The applicant, Speaker of the County Assembly of Baringo, moved the High Court at Nakuru by Chamber Summons dated 19 March 2015 seeking leave to apply for judicial review orders of prohibition and certiorari against the Clerk of the County Assembly, and that leave operate as a stay of the Assembly's resolution of 18 March 2015 removing him as Speaker. The background was that after a removal motion was defeated on 11 February 2015, the applicant received on 14 March 2015 a short notice dated 12 March 2015 to appear before an Ad Hoc Committee on 16 March 2015, without the Petition he was to answer. His advocates objected on notice, non-service of the Petition and standing order no. 47, yet the Assembly debated the Committee's report on 18 March 2015 and resolved to remove him. Counsel argued that a fresh removal motion was barred for six months under standing order no. 47, that the applicant lacked sufficient notice, and that the Committee's recommendations breached section 11 of the County Government Act. Relying on the leave test in Republic v County Council of Kwale ex parte Kondo and Mirugi Kariuki v Attorney General, the court found an arguable case and granted leave. Applying Taib A. Taib, it held stay to be discretionary and granted it only in limited terms: salaries/benefits payable to a speaker on suspension would be paid, and the advertising and processing of applications to fill the Speaker's position would be stayed. A broader stay compelling reinstatement with full privileges was refused as it would preempt the pending Eldoret proceedings. The applicant was directed to file the substantive motion within five days, to be mentioned within ten days. Costs in the cause.

Key legal issues

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01

Threshold for grant of leave to apply for judicial review

Holding

Leave was merited because the applicant demonstrated that statutory provisions and the Assembly's Standing Orders may have been breached in the resolution of 18 March 2015, establishing an arguable case

Reasoning

Applying the test in Republic v County Council of Kwale ex parte Kondo and the threshold in Mirugi Kariuki v Attorney General, the court held that at the leave stage the court should not delve into the merits but need only find a case fit for further investigation. The applicant showed possible breaches of statutory provisions and Standing Orders, including standing order no. 47, so the application was not frivolous.

p. 3
02

Whether leave should operate as a stay of the removal resolution

Holding

Yes, but the stay was limited to payment of salaries/benefits payable to a speaker on suspension and to the advertising and processing of applications to fill the Speaker's position

Reasoning

Guided by Taib A. Taib v Minister for Local Government, the court held stay is discretionary and meant to prevent the application from being rendered nugatory. The applicant was denied the Petition and sufficient notice, but granting the stay in the full form sought would preempt the pending Eldoret proceedings and compel reinstatement, which is impermissible; hence a limited stay.

p. 4
03

Separation of powers - court's restraint in matters of County Assemblies

Holding

The court flagged the danger of intruding into the terrain of other branches of the State and the limited scope of judicial review orders, restricting itself to the leave and stay questions

Reasoning

Because the dispute touches the workings of a County Assembly, a governance organ under the Constitution 2010, the court was careful not to make final determinations at the leave stage, noting that judicial review offers limited orders compared to a constitutional petition. It accordingly confined itself to leave and stay and directed expeditious prosecution of the substantive application.

p. 3

Legal principles established

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  • Leave to apply for judicial review is granted where, without going into the matter in depth, there is an arguable case fit for further investigation at a full inter partes hearing
  • Stay orders in judicial review are discretionary and are intended to prevent the applicant's application from being rendered nugatory, but cannot be framed so as to compel a public body to act or reinstate an applicant before hearing the respondent

Court orders

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  1. 1.Leave granted to the applicant to apply for judicial review orders of prohibition and certiorari
  2. 2.The grant of leave to operate as a stay limited to (i) payment of such salaries/benefits as are payable to a speaker on suspension; and (ii) the advertising and processing of applications to fill the position of the Speaker of the County Assembly of Baringo
  3. 3.Applicant to file and serve a substantive application within 5 days, to be mentioned within 10 days for further directions
  4. 4.Costs in the cause

Authorities

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Legislation

  • County Government Actsection 11
  • County Assembly of Baringo Standing Ordersstanding order no. 47
  • Constitution of Kenya, 2010governance structure establishing County Assemblies (general reference)

Cases cited (3)

  • Republic v County Council of Kwale & Ar ex parte Kondo & 57 Ors
    Mombasa HCMCA No. 384 of 1986
  • Mirugi Kariuki v Attorney General
    (1992) KLR 8
  • Taib A. Taib vs. The Minister for Local Government & Others
    Mombasa HCMISCA No. 158 of 2006
Jurisdiction invoked
Judicial review jurisdiction of the High Court (leave to apply for orders of prohibition and certiorari)

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, "William Kassait Kamket v Clerk County Assembly of Baringo [2015] KEELRC 1296 (KLR)", Case Analysis (2015). Chamber Summons dated 19 March 2015 (Eldoret Judicial Review Application No. 8 of 2014 referenced separately; instant case number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1296/eng@2015-03-20

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