George Maina Kamau v County Assembly of Muranga & 2 others [2016] KEELRC 1564 (KLR)
The bottom line
#A Kenyan court upheld county assemblies' power to remove executive committee members, but Murang'a County withdrew its removal attempt and no one was punished for contempt.
What this practically means
#Executive summary
#Key legal issues
#Constitutionality of section 40 of the County Governments Act, 2012
Section 40 is not unconstitutional; the select committee operates at arms'-length from the full assembly with safeguards including the right to appear and be represented and majority approval of removal
The court held itself bound by Court of Appeal decisions in County Government of Nyeri v Cecilia Wangechi Ndungu and Narok County Government v Richard Bwongo Birir recognizing section 40 as valid. It found the select committee a strategic arms-length body, with due process safeguards under section 40(4)-(6), and held that any want of independence must be proved by evidence on a case-by-case basis, guided by section 12 of the Public Officer Ethics Act and regulation 11 of its Regulations.
Scope of judicial review into merits of removal grounds
Absent alleged illegality, the court will not examine the merits of the grounds for removal; the allegations against the petitioner did not on their face violate Article 236
Following its own ruling in Abdikadir Suleiman v County Government of Isiolo, the court retains jurisdiction over legality of exercise of statutory powers but not merits absent illegality. Illegality founded on unreasonableness per Wednesbury could justify merits review, but the facially proper allegations here did not establish it.
Binding effect of Stephen Nendela v County Assembly of Bungoma
The Nendela orders bound only the parties in that case and did not apply to the present parties; section 40 was not declared a general nullity
The court found order (b) in Nendela was crafted to bind the specific parties and that the section had not been shown to inherently contain an unconstitutional prescription. However, the petitioner's reliance on Nendela was a genuinely held view, and the respondents themselves had cautioned themselves by resolving to send the report to the Senate before proceeding.
Contempt of court against the Speaker and the Clerk
The cited persons were not in contempt; the order paper was prepared before the court order and no debate on the report occurred on 24.09.2015
Although the order lacked a penal notice, personal service was not mandatory where parties had knowledge of the order. On the facts, tabling the report on 24.09.2015 did not amount to disobedience because the order paper predated the order and no debate or discussion of the motion occurred.
Legal principles established
#- A party who is aware of a court order is bound to obey it even absent formal personal service with a penal notice
- Section 40 of the County Governments Act, 2012 is constitutional and capable of constitutional application; unconstitutionality must be established case by case on the facts of application
- A decision that a statute has been unconstitutionally applied binds only the parties to that litigation and does not invalidate the statute generally
- A court will not inquire into the merits of removal grounds absent alleged illegality, but may examine merits where illegality or unreasonableness is alleged in substance or procedure
Court orders
#- 1.The County Assembly of Murang'a withdraws and removes its resolution made on 7th September 2015, together with all consequential processes, seeking the removal of the petitioner from the position of County Executive Committee Member, Finance, IT and Planning, Murang'a County
- 2.There be no orders as to costs
- 3.The petition be and is hereby marked as settled on the above terms
- 4.The contempt application is dismissed (the cited persons were not found in contempt)
- 5.All proceedings undertaken against the petitioner under section 40 of the County Governments Act, 2012 set aside, with liberty for the respondents to recommence the process in accordance with law
- 6.This judgment to be forwarded to the Attorney General for appropriate consideration
- Jurisdiction invoked
- Articles 22, 23 and 165 of the Constitution of Kenya, 2010; Rules 3, 4, 13, 19 and 23 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (7)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Ncharo v County Assembly of Kajiado & 3 others (Petition E056 of 2023) [2024] KEELRC 624 (KLR)[2024] KEELRC 624 (KLR)15 Mar 2024applied
- John Florence Maritime Services Ltd & another v Cabinet Secretary Transport & Infrastructure & 3 others[2021] KESC 39 (KLR)6 Aug 2021
- Hon. Faith Syokau Wathome Kithu (MBS) & Others v Machakos County Assembly & Others[2018] KEHC 2832 (KLR)5 Nov 2018
- Mercy Munee King’oo & Another v Safaricom Limited & Attorney General[2016] KEHC 2206 (KLR)3 Nov 2016
- Petitioner v The County Assembly (Speaker), Ad Hoc Committee & Another[2016] KEHC 3329 (KLR)7 Sept 2016
- Geoffrey Kipkirui Cheruiyot & Others v [Respondent Insurance Company][2016] KEHC 7108 (KLR)20 Jan 2016
- Geoffrey Kipkirui Cheruiyot & Others v [Respondent Insurance Company][2016] KEHC 7108 (KLR)20 Jan 2016followed
Cite this brief
#Cite this brief
Caselaw, "George Maina Kamau v County Assembly of Muranga & 2 others [2016] KEELRC 1564 (KLR)", Case Analysis (2016). Petition No. 9 of 2015 (as filed 21.09.2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1564/eng@2016-03-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.