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ELRCAllowedNot stated in judgment· [2016] KEELRC 1738 (KLR)

Norah Moraa Ombui v Speaker Kisii County Assembly & another [2016] KEELRC 1738 (KLR)

High Court of Kenya
28 January 2016
DMD.K. Njagi Marete
2,027 words in judgment
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The bottom line

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Kenya's High Court stopped the Kisii County Assembly from removing a board member because she was never given a hearing before being dismissed.

What this practically means

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Executive summary

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The petitioner, a member of the Kisii County Assembly Service Board since July 2013, brought a Notice of Motion dated 18th May 2015 seeking conservatory orders after the Speaker of the Kisii County Assembly, by letter dated 14th May 2015, revoked her appointment to the Board. The revocation followed a resolution to dissolve the Board arising from a Justice and Legal Affairs Committee investigation into impropriety during a medical insurance cover exercise. She argued the revocation breached her rights to due process, natural justice and fair administrative action under Article 47(1) of the Constitution, as she was condemned unheard without particularised accusations. The respondents filed grounds of opposition and a preliminary objection, contending the petition was an abuse of process, incompetent, premature, that the court lacked territorial jurisdiction, that the 2nd respondent lacked capacity to be sued, and that Section 12 of the Powers and Privileges Act Cap 6 ousted the court's jurisdiction over Assembly proceedings. The parties by consent obtained interim orders on 21st May 2015, and on 3rd July 2015 agreed to dispose of the application by written submissions. The court applied the Giella v Cassman Brown criteria, found the petitioner had demonstrated a prima facie case with probability of success, dismissed the respondents' opposition as hollow, evasive and escapist, and allowed the application. Injunctions issued restraining the respondents from barring, dismissing, disbanding or reconstituting the Board or interfering with the petitioner's membership pending determination of the petition, with costs to the respondents.

Key legal issues

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01

Whether revocation of the petitioner's membership of the County Assembly Service Board without hearing violated due process and fair administrative action under Article 47(1)

Holding

The court found the revocation was done without consultation or hearing and that the petitioner demonstrated a prima facie case, justifying injunctive relief.

Reasoning

The petitioner's membership was revoked following a Justice and Legal Affairs Committee report on the medical insurance exercise, without consultation or hearing. The respondents' opposition was described as hollow, evasive and escapist and failed to controvert the petitioner's case or satisfy the grounds of opposition and preliminary objection. The petitioner therefore met the Giella v Cassman Brown criteria for an injunction.

p. 4
02

Whether Section 12 of the Powers and Privileges Act ousts the court's jurisdiction

Holding

The court implicitly rejected this ouster argument, finding the respondents' submissions fell short of satisfying their grounds of opposition and preliminary objection on jurisdiction.

Reasoning

The respondents relied on Section 12 of the Powers and Privileges Act to immunise the Assembly's actions from court scrutiny and argued lack of territorial jurisdiction. The court held that the respondents' arguments and submissions fell short of satiating the grounds of opposition and preliminary objection, and that their pleadings could not sustain a tangible opposition to the application.

p. 4

Legal principles established

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  • For the court to grant injunctive relief the applicant must show a prima facie case with probability of success, irreparable harm not compensable by damages, and, if in doubt, the balance of convenience (Giella v Cassman Brown).

Court orders

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  1. 1.Orders of injunction restraining the respondents, their agents and servants from barring, preventing, hampering, restricting or dismissing the petitioner from membership, or disbanding the Kisii County Assembly Service Board or reconstituting the same and or interfering with the petitioner's membership of the Kisii County Assembly Service Board pending the hearing and determination of the petition filed herein
  2. 2.The costs of the application to be borne by the respondents

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 47(1)
  • Powers and Privileges Act, Chapter 6 Laws of KenyaSection 12
  • County Government ActNot specified (2012)

Cases cited (2)

  • MRAO VS FIRST AMERICAN BANK OF KENYA LIMITED & 2 OTHERS
    (2003) KLR 125
  • Giella Vs. Cassman Brown & Company Ltd
    (1973) E.A 358
Jurisdiction invoked
Constitution of Kenya, 2010, Article 47(1) (fair administrative action) invoked by the petitioner; respondents invoked Section 12 of the Powers and Privileges Act Cap 6 to oust jurisdiction

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, "Norah Moraa Ombui v Speaker Kisii County Assembly & another [2016] KEELRC 1738 (KLR)", Case Analysis (2016). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1738/eng@2016-01-28

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