Kisumu County Assembly Service Board & another v Kisumu County Assembly Public Service Board & 4 others [2015] KEELRC 1474 (KLR)
The bottom line
#Kenya's employment court nullified the impeachment of Kisumu County Assembly Speaker Anne Adul because she was removed without notice or a fair hearing.
What this practically means
#Executive summary
#Key legal issues
#Whether the 1st Petitioner (County Assembly Service Board) has locus standi to institute a constitutional petition
The 1st Petitioner, as a body corporate under Section 12 of the County Governments Act, has locus; 'person' under Article 260 includes incorporated and unincorporated bodies
Section 12(2) establishes the CASB as a body corporate with perpetual succession and a common seal with power to sue and be sued. Article 260 defines 'person' to include a company, association or other body whether incorporated or unincorporated, and the Mutunga Rules adopt the same definition. Article 22 also permits suits in the public interest and in the interest of members. The authority cited by Respondents did not displace this.
Whether the sittings of the Assembly on 14th and 16th October 2014 were lawful
The sitting of 14.10.14 chaired by the Speaker was lawful; the sitting of 16.10.14 presided over by Samuel Ombogo was not, as his election as presiding officer was unexplained
Article 178(2) requires sittings to be presided over by the Speaker or, in her absence, a member elected by the Assembly. No evidence showed how Samuel Ombogo was elected to preside, and the procedure in Article 178(1) and the Elections Act was not followed. The 5th Respondent himself denied being elected.
Whether the impeachment of the 2nd Petitioner on 21.10.14 was lawful
The removal was unlawful: the notice was signed by only one member instead of one third, no 48-hour notice, no hearing, the Assembly was presided over by a stranger Speaker and an unqualified Acting Clerk, and the resolution was passed after the High Court had stopped the process
Section 11 of the County Governments Act requires a notice signed by at least one third of members, presiding by a member elected under Section 9(4), and an opportunity for the Speaker to respond. The notice was signed only by Hon Nereah Okombo; the 2nd Petitioner first encountered the motion by email on 21.10.14 and was denied entry to the chamber. Ombogo's election was unexplained, and Ojuok lacked qualifications under Section 13(2).
Whether Section 11 of the County Governments Act and Standing Order No. 58 are unconstitutional
They are not unconstitutional; the Petitioners did not demonstrate inconsistency with Article 21(1)
Section 11 prescribes an elaborate removal procedure that includes due process contemplated by the Constitution. The Petitioners did not demonstrate unconstitutionality vis-à-vis Article 21(1); the violation lay in non-compliance with the procedure, not in the provision itself.
Whether the Petitioners' constitutional rights were infringed
Yes - the 2nd Petitioner's rights under Articles 47, 10, 41 and others were infringed, and the Interested Parties were unfairly removed and deployed without a hearing
The illegalities found - removal without notice or hearing, denial of access to her office, manhandling captured on video, deployment of the Interested Parties by unqualified persons - amounted to unfair administrative action, inhuman treatment and unfair labour practices contrary to Articles 47, 10 and 41.
Legal principles established
#- A County Assembly Service Board, being a body corporate with perpetual succession, has capacity to sue, and 'person' under Article 260 and the Mutunga Rules includes corporate bodies, so it has locus under Article 22
- Removal of a Speaker requires strict compliance with the procedure in Section 11 of the County Governments Act including a notice signed by at least one third of members and an opportunity to be heard
- Appointment of a clerk of a county assembly is a function of the County Assembly Service Board, not the County Executive; the executive cannot appoint or deploy such officers
Court orders
#- 1.Declaration that the 1st Respondent through its purported Committee of the Whole House does not have power to suspend, dissolve or carry out the statutory functions of the 1st Petitioner except as bestowed by law and the Constitution
- 2.Declaration that the purported Committee of the Whole House has no powers to constitute offices in the County Assembly Service Board or appoint or supervise office holders, and quashing of decisions appointing or deploying clerk or deputy clerk as null and void
- 3.Declaration that the proceedings and resolution of 21.10.14 removing the 2nd Petitioner were held in violation of the law and a court order and were null and void
- 4.Declaration that the removal proceedings of 21 October 2014 gravely violated Article 178, Section 11 of the County Government Act 2012 and natural justice and are null and void
- 5.Order of certiorari to remove into the court and quash the proceedings and resolution of 21.10.14 purporting to remove the 2nd Petitioner as Speaker
- 6.Declaration that the 2nd Petitioner remains Speaker unless and until lawfully removed
- 7.Declaration that the County Secretary/County Government of Kisumu has no jurisdiction to constitute offices of the County Assembly Service or appoint office holders, and quashing of the two letters dated 15.10.14
- 8.Declaration that the appointments of Eliud Owen Ojuok as Acting Clerk and Nicholas Steven Okola as Assistant Clerk on 15.10.14 are unconstitutional, illegal, null and void, and quashing of the appointments
- 9.Declaration that the 3rd Respondent is not qualified to act in those positions for violation of Sections 64(1) and (2) as read with Section 13 of the County Governments Act 2012
- 10.Declaration that the 1st Respondent abused its constitutional and statutory mandate in purporting to disband, dissolve and/or suspend the 1st Petitioner
- 11.Declaration that the 1st Respondent can only perform roles under Article 185 and Section 8(1) of the County Government Act 2012 and acted ultra vires on 15.10.14 in violation of Article 47
- 12.Declaration that the 2nd Petitioner's rights under Articles 25(a), (c), 27(1)(2), 28, 29(c)(d)(f), 38(3)(c), 47, 50(1)(2), 41 and 236(a) and (b) were infringed and threatened
- 13.Declaration that the members of the 1st Respondent and other Respondents contravened the Constitution and written laws
- 14.Declaration that the censure proceedings of 16.10.14 violated the 2nd Petitioner's right to a hearing and Standing Order No. 83(1), and quashing of the same
- 15.Order of compensation in favour of the 2nd Petitioner for violation of rights
- 16.Costs of the proceedings to be borne by the Respondents
- On appeal from
- null
- null
- Jurisdiction invoked
- Article 22, 23, 41 and 47 of the Constitution of Kenya, 2010 (petition transferred from the High Court, Kisumu, where it was filed as Petition No. 22 of 2014)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Wambua Maithya v Pharmacy and Poisons Board & Others[2019] KEHC 4074 (KLR)26 Sept 2019
Cite this brief
#Cite this brief
Caselaw, "Kisumu County Assembly Service Board & another v Kisumu County Assembly Public Service Board & 4 others [2015] KEELRC 1474 (KLR)", Case Analysis (2015). Petition No. 294 of 2014 (originally High Court Petition No. 22 of 2014, Kisumu). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1474/eng@2015-01-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.