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ELRCDismissedPetition No. 12 of 2015· [2016] KEELRC 1446 (KLR)

James Omariba Nyaoga & another v Speaker of the County Assembly - Kisii County & 2 others [2016] KEELRC 1446 (KLR)

Employment and Labour Relations Court
1 February 2016
2,270 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court refused to stop Kisii County Assembly disciplinary action against two top officials, ruling they failed to prove their rights were under threat.

What this practically means

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Executive summary

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James Omariba Nyaoga (Clerk) and Joseph Maranga Amenya (Finance Director) of the Kisii County Assembly petitioned against the Speaker, the Kisii Assembly Service Board and the Kisii County Assembly, alleging violation of their fundamental rights, and simultaneously sought conservatory orders restraining disciplinary action, suspension, interference with their duties, or appointment of persons to act in their places, arising from show-cause letters dated 8th May 2015 accusing them of abuse of office over a medical insurance contract with APA Insurance said to have caused a loss of Kshs 9.5 million. Interim injunction was granted ex-parte; at the inter partes hearing the court framed one issue: whether the Petitioners had established a violation or threat of violation justifying conservatory orders. The court held that the Chairman of the Service Board had power under section 76(6) of the County Government Act to take the interlocutory step of inviting the Petitioners; that the Public Service Commission Guidelines requiring 21 days' notice applied only to public officers seconded to county governments, which neither petitioner was; that overlapping membership between the Assembly and the Board is prescribed by law and cannot found a bias claim, the impartiality standard of judicial tribunals being unattainable in employment disciplinary panels; and that fraud and discrimination allegations were matters for proof at the hearing. The court also noted non-disclosure that the Petitioners had already been suspended on 12th May 2015 with 21 days to respond. Applying Gatirau Peter Munya v Dickson Mwenda Kithinji, the court found public interest militated against the prayers and dismissed the application with costs.

Key legal issues

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01

Whether the notice to show cause issued by the 1st Respondent without a duly convened meeting of the Board was invalid

Holding

The chairman of the County Service Board had the mandate to take the interlocutory step of inviting the Petitioners to appear before the Board

Reasoning

The court held that under section 76(6) of the County Government Act, the chairman of the County Service Board had the mandate to take interlocutory action, so the invitation to appear before the Board was lawful notwithstanding the argument that the Board could act only through a duly convened meeting.

p. 4
02

Whether the notice breached a 21-day notice requirement in the Public Service Commission Guidelines

Holding

No 21-day requirement applied, as the Guidelines were relevant only to public officers seconded to county governments and neither petitioner was seconded

Reasoning

The court perused the Guidelines and Delegation Instruments of the Public Service Commission and found they expressly applied only to public officers seconded to county governments. Since neither petitioner was a seconded public officer, the alleged 21-day notice requirement did not apply to them.

p. 4
03

Whether overlap in membership between the County Assembly and the Service Board rendered the disciplinary process impartial

Holding

The overlap is prescribed by law and inevitable; arguing such members should not sit would lead to the absurdity that affected employees could never be disciplined

Reasoning

Membership of both bodies is prescribed by law, so overlap is inevitable in discipline arising from the Assembly's oversight mandate. Preventing such members from sitting would mean affected employees could not be disciplined, which could not have been the intention of the Constitution or the legislature.

p. 4
04

Whether allegations of fraud in the tendering process and discrimination warranted conservatory orders

Holding

Those are matters for proof at the hearing of the petition, not for determination at the interlocutory stage

Reasoning

The court held that whether there was fraud in the tendering process and whether there was discrimination in handling the fraud case were issues requiring proof at the full hearing and could not justify interlocutory conservatory relief.

p. 5
05

Whether the Petitioners satisfied the principles for conservatory orders

Holding

They did not; public interest and the facts militated against granting the prayers

Reasoning

Applying the Supreme Court's Munya decision, the court found no demonstrated threat or violation of fundamental rights. It also noted non-disclosure that the Petitioners were already suspended on 12th May 2015 with 21 days to respond, which undermined their claim of imminent harm.

p. 5

Legal principles established

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  • Conservatory orders should be granted bearing in mind the public interests, the Constitutional values and the proportionate and priority levels attributable to the relevant causes (Gatirau Peter Munya v Dickson Mwenda Kithinji, applied)
  • The standard of impartiality required of judicial or quasi-judicial tribunals cannot be achieved in employment disciplinary panels; the employer may discipline its own employee without independent external panellists

Court orders

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  1. 1.The application seeking conservatory orders is dismissed with costs

Authorities

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Legislation

  • County Government ActNo. 17 of 2012; section 76(6)
  • Public Finance Management Act2012
  • Constitution of KenyaArticle 2(2); Article 259(1)
  • Employment Actsection 41
  • Public Service Commission Guidelines and Delegation Instrumentsnotice requirements
  • Public Service Regulations21-day notice provision (as cited by petitioners)

Cases cited (2)

  • Joram Mwenda Guantai v Chief Magistrate, Nairobi
  • Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others
    [2014]eKLR
Jurisdiction invoked
Constitution of Kenya, 2010 (bill of rights enforcement jurisdiction; Article 2(2) invoked in argument)

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, "James Omariba Nyaoga & another v Speaker of the County Assembly - Kisii County & 2 others [2016] KEELRC 1446 (KLR)", Case Analysis (2016). Petition No. 12 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1446/eng@2016-02-01

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