Norah Moraa Ombui v Speaker Kisii County Assembly & another [2016] KEELRC 352 (KLR)
The bottom line
#Kenya's High Court ruled that county assemblies cannot remove board members without a fair hearing, and legislative immunity doesn't block constitutional challenges.
What this practically means
#Executive summary
#Key legal issues
#Whether the revocation of the petitioner's appointment to the County Assembly Service Board was ultra vires and unconstitutional
It was ultra vires and unconstitutional because it was done without due process, without particularized allegations and condemned the petitioner unheard.
The petitioner was appointed under Section 12(2) of the County Government Act on objective criteria and entitled to legitimate expectations of due process, protection of rights and natural justice. The allegations leading to the 13th May 2015 deliberations were not disclosed or particularized to her; she was denied an opportunity to be heard while the three ex-officio members retained their seats. The removal therefore transgressed her right to fair hearing and fair administrative action under Article 47(1).
Whether the 1st respondent's execution of the revocation infringed the petitioner's right to fair administrative action
Yes; the Speaker had no power or jurisdiction to sign or issue the revocation letter and thereby infringed Article 47(1).
The court agreed with the petitioner that in executing the revocation the 1st respondent impugned her right to fair administrative action. The Speaker also failed to step aside or disqualify himself during debate touching on the Board he chaired, presiding over proceedings that victimized the petitioner, which the court characterized as a transgression of fair hearing and fair administrative process.
Whether Section 12 of the Powers and Privileges Act ousts the court's jurisdiction over the Assembly's proceedings
No; the immunity defence cannot stand where there is flagrant violation of the Constitution, given constitutional supremacy.
The respondents argued that no proceedings or decision of the assembly could be questioned in any court under Section 12 of the Powers and Privileges Act. The court held that in a constitutional democracy the Constitution takes sway and supremacy, and any argument of protection or immunity in circumstances of flagrant violation of the Constitution would not stand the test; the court could interpret the law under Articles 165, 23, 159 and 259.
Legal principles established
#- Section 12 immunity under the Powers and Privileges Act cannot shield a legislative body where there is a flagrant violation of the Constitution and of fair administrative action rights.
- A person appointed to a County Assembly Service Board under objective statutory criteria is entitled to legitimate expectations of due process, protection of rights and natural justice before removal.
Court orders
#- 1.A declaration that the respondents violated the petitioner's right to fair administrative action under Article 47(1) of the Constitution
- 2.A declaration that the interim committee of six (6) appointed to run the affairs of the Kisii County Assembly Service Board has no legal underpinning, is unconstitutional and incapable of executing the Board's mandate
- 3.A declaration that the Speaker of the Kisii County Assembly does not and did not have power and jurisdiction to sign or issue the letter of revocation dated 14th May 2015
- 4.A declaration that the 2nd respondent overstepped, usurped, assumed and arrogated itself excessive and illegal powers in disbanding or suspending the petitioner and acted ultra vires
- 5.A declaration that the deliberations conducted by the respondents were premature and in breach of the petitioner's right to due process, the petitioner having been condemned unheard
- 6.An order annulling and revoking the respondents' letter/communication dated 14th May 2015 and the deliberations preceding it
- 7.A declaration that paragraph 250 of the report of the Committee of Justice and Legal Affairs is unconstitutional, null and void ab initio
- 8.An order quashing and expunging paragraph 250 of the report of the Committee of Justice and Legal Affairs' inquiry on medical insurance cover released in April 2015
- 9.Costs of the petition to be borne by the respondents
- Jurisdiction invoked
- Articles 23(1), 165(3)(d) and (6) of the Constitution of Kenya, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Norah Moraa Ombui v Speaker Kisii County Assembly & another [2016] KEELRC 352 (KLR)", Case Analysis (2016). Not stated in the judgment (Petition dated on or about 18th May 2015; Amended Petition amended 4th June 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/352/eng@2016-11-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.