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ELRCDismissedNot stated in the judgment· [2017] KEELRC 1637 (KLR)

Patrick Oyugi Wakine & 2 others v County Assembly of Migori County & 3 others [2017] KEELRC 1637 (KLR)

Employment and Labour Relations Court
19 January 2017
MOMaureen Onyango
3,826 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled that interdicted Migori County Assembly officers were disciplined lawfully, confirming interdiction pending investigation doesn't require a full hearing first.

What this practically means

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Executive summary

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Three officers of the Migori County Assembly Service Board and one officer of the County Public Service Board petitioned against their interdiction following a resolution of the County Assembly of Migori requiring the entire membership of the Assembly Service Board to step aside so that improprieties raised in the County Public Investments and Accounts Committee report could be investigated. The petitioners contended that the interim County Assembly Service Board, the deployment of the 4th Respondent as Acting Clerk by the County Public Service Board, and the interdictions themselves were unknown to law, unprocedural and violated the County Governments Act, the Fair Administrative Actions Act, 2015 and Articles 10, 41, 47 and 236 of the Constitution. They sought declarations, permanent injunctions, certiorari and prohibition and damages. The respondents maintained the interim Board and Acting Clerk were properly in office and the interdictions were valid interim measures. The court framed five issues and held that the Assembly Service Board, being a body corporate with perpetual succession under section 12(2) of the County Governments Act, could not fall into vacuum; members who stepped aside were replaced in interim capacity by deputies consistent with Article 259(3) of the Constitution. The 4th Respondent was lawfully deployed at the Board's request. Interdiction was held to be an interim measure and the hearing arguments premature since no substantive disciplinary action had been taken. Section 77 of the County Governments Act did not apply to Assembly Service Board officers and did not oust the court's jurisdiction. The petition was dismissed with no orders for costs.

Key legal issues

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01

Legality of the interim County Assembly Service Board

Holding

The Board was legally in office; the Assembly filled the positions of members who stepped aside in interim capacity by their deputies in line with Article 259(3) of the Constitution, and the Board's perpetual succession under section 12(2) of the County Governments Act precludes any vacuum.

Reasoning

The Assembly's resolution required all members of the Board to step aside. The hansard showed the Speaker, Majority and Minority leaders and elected member were replaced by their deputies or others. The 2nd and 3rd Petitioners, not being statutory members, were not replaced, but their absence did not void the Board's resolutions. Section 12(2) makes the Board a body corporate with perpetual succession, so it can never fall into vacuum.

p. 5
02

Legality of the 4th Respondent's appointment as Acting Clerk

Holding

The 4th Respondent was lawfully redeployed to the County Assembly as acting clerk by the County Public Service Board at the request of the County Assembly Service Board, and had authority to act as secretary to the Board.

Reasoning

The deployment letter shows the County Public Service Board deployed the 4th Respondent following a request from the County Assembly Service Board. The County Governments Act does not prohibit the Board from requesting such temporary deployment; sections 69 and 72 give the County Public Service power to redesignate and redeploy its officers. The appointment was ratified by the County Assembly.

p. 6
03

Validity of the interdictions

Holding

The interdictions were valid; interdiction is an interim measure pending investigations and the hearing arguments were premature since no substantive disciplinary action had been taken.

Reasoning

The Assembly resolved that implicated members step aside for 60 days pending investigations into improprieties in the County Public Investments and Accounts Committee report. In the absence of applicable disciplinary regulations, the court applied the Public Service Commission Disciplinary Manual on interdiction. The petitioners, having moved to court on being served with notices to show cause, would be heard before further disciplinary action; none denied participation in the improprieties.

p. 6
04

Prematurity / exhaustion of the appeal mechanism under section 77 of the County Governments Act

Holding

Section 77 applies to officers under the County Public Service Board, not to officers of the County Assembly Service Board, and in any event does not oust the court's jurisdiction.

Reasoning

The petitioners are officers under the County Assembly Service Board, so section 77, which governs officers serving under the County Public Service Board, is inapplicable. Even so, the provision does not bar the court from intervening where there are procedural flaws in a disciplinary process; the court will not otherwise take over the employer's disciplinary mandate.

p. 8

Legal principles established

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  • A County Assembly Service Board, being a body corporate with perpetual succession under section 12(2) of the County Governments Act, can never fall into vacuum; members who step aside may be replaced in interim capacity by deputies or persons performing the functions of the office.
  • Interdiction is an interim measure pending investigations and does not require the hearing safeguards applicable to substantive disciplinary action.
  • Section 77 of the County Governments Act does not oust the court's jurisdiction; an officer of the County Assembly may seek court intervention without first exhausting the appeal to the Public Service Commission.

Court orders

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  1. 1.The petition is dismissed
  2. 2.There shall be no orders for costs

Authorities

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Legislation

  • County Governments Actsections 12(2), 12(4), 13, 14, 69, 72, 77
  • Fair Administrative Actions Actsection 4(3)
  • Constitution of Kenya, 2010Articles 10(2)(c), 41, 47(1), 232, 236, 259(1), 259(3)
  • Public Service Actnot specified
  • Public Finance Management Actnot specified

Cases cited (1)

  • Nehemiah Nyabuto Nyakundi v Clerk County Assembly of Nyamira & 4 others
    (2014) eKLR
Jurisdiction invoked
Original constitutional petition jurisdiction (Constitution of Kenya, 2010); the judgment does not cite the specific originating provision

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, "Patrick Oyugi Wakine & 2 others v County Assembly of Migori County & 3 others [2017] KEELRC 1637 (KLR)", Case Analysis (2017). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2017/1637/eng@2017-01-19

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