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ELRCPartially AllowedPetition No. (not stated)· [2018] KEELRC 155 (KLR)

Julius Masiva Obuga v County Assembly Service Board of Vihiga & 3 others [2018] KEELRC 155 (KLR)

High Court of Kenya
13 December 2018
2,420 words in judgment
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The bottom line

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Kenya's High Court voided Vihiga County Assembly's clerk appointment because the Assembly bypassed the legally required recruitment board and appointed a candidate never recommended for approval.

What this practically means

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Executive summary

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The Petitioner, chair of the Vihiga County Budget, Environmental and Human Rights Oversight Forum, challenged the appointments of Kilinga Ambaka as Clerk and Nahashon Kisina Opanga as Deputy Clerk of the County Assembly of Vihiga. Following an advertisement of 12th August 2015, 46 people applied for Clerk; 13 were shortlisted and interviewed in January 2016. The County Assembly Service Board unanimously ranked and appointed James Oyundi Mukabi, submitting his name with the 2nd and 3rd ranked candidates (Linet Busieka Mugalitsi and Tom Shavisa) as alternatives for approval. The 3rd Respondent was ranked 5th and his name was never submitted, yet the speaker signed his letter of appointment. The court framed three issues. On the first, it found the Assembly could not appoint a person not recommended by the Board: the 3rd Respondent's appointment violated sections 13(1) and 14(3)(a)-(c) of the County Governments Act and was null and void, with the speaker censured for impunity and disregard of the law. On the second, the court held there is no requirement that a clerk or deputy clerk be an admitted advocate with a practising certificate, and the Petitioner failed to prove on a balance of probabilities that due process was not followed in the 4th Respondent's appointment; the claim against him was dismissed. The court declared the 3rd Respondent's appointment unlawful, null and void, directed him to vacate, ordered resubmission of Mukabi's name (with the two alternatives as fallback), and awarded costs to the Petitioner against the 1st, 2nd and 3rd Respondents. The petition was therefore partially allowed.

Key legal issues

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01

Whether the County Assembly could appoint as clerk a person not recommended by the County Assembly Service Board

Holding

It could not; the appointment of the 3rd Respondent, ranked 5th and never submitted for approval, was unlawful, null and void

Reasoning

Section 13(1) requires appointment by the Board with the approval of the Assembly, and section 14(3) prescribes the approval procedure via committee. The Board unanimously recommended James Oyundi Mukabi, with the 2nd and 3rd ranked candidates as alternatives. The speaker single-handedly appointed the 3rd Respondent, whose name was never submitted, in blatant violation of the statute and with extreme impunity.

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02

Whether the Deputy Clerk must be an admitted advocate with a valid practising certificate

Holding

No; section 13(2) prescribes the qualifications and advocacy qualification is not among them

Reasoning

The Petitioner failed to prove on a balance of probabilities that due process was not followed in the 4th Respondent's appointment as Deputy Clerk. Section 13(2) requires citizenship, a recognised degree, five years' relevant experience and Chapter Six integrity, none of which requires admission as an advocate. The claim against the 4th Respondent was therefore dismissed.

p. 4

Legal principles established

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  • A clerk of a county assembly must be appointed by the County Assembly Service Board and only a person so appointed and submitted for approval may be approved by the county assembly
  • Appointment of a person not recommended by the Board violates the County Governments Act and is null and void
  • There is no statutory requirement that a clerk or deputy clerk of a county assembly be an admitted advocate with a practising certificate

Court orders

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  1. 1.Declaration that the appointment of the 3rd Respondent Kilinga Ambaka as Clerk of the County Assembly of Vihiga is unlawful, null and void
  2. 2.The 3rd Respondent directed to vacate the position of Clerk forthwith
  3. 3.1st Respondent directed to submit the name of James Oyundi Mukabi for approval by the 2nd Respondent in terms of sections 13(1) and 14(3)(a)(b) and (c) of the County Governments Act as read with standing order 42 of the County Assembly standing orders
  4. 4.In the event Mukabi is not approved, the 2nd Respondent to only consider the 2nd and 3rd ranked candidates, Linet Busieka Mugalitsi and Tom Shavisa
  5. 5.Dismissal of the case against the 4th Respondent, Deputy Clerk
  6. 6.1st, 2nd and 3rd Respondents to pay the costs of the petition

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 10(2)(c), 232(1)(a), Chapter Six
  • County Governments Act, 2012Sections 13(1), 13(2), 13(5), 14(3)(a)-(c)
  • County Assembly standing ordersStanding order 42
Jurisdiction invoked
Constitution of Kenya, 2010, Article 10(2)(c) and 232(1)(a) read with County Governments Act, sections 13 and 14(3)

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, "Julius Masiva Obuga v County Assembly Service Board of Vihiga & 3 others [2018] KEELRC 155 (KLR)", Case Analysis (2018). Petition No. (not stated). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/155/eng@2018-12-13

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