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ELRCOtherNot stated in the judgment as provided· [2018] KEELRC 1211 (KLR)

Beatrice Kedeveresia Elachi v Nairobi City County Assembly Service Board & another [2018] KEELRC 1211 (KLR)

High Court of Kenya (Constitutional and Judicial Review Division)
14 September 2018
RSRadido Stephen
4,194 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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Kenya's High Court protected Nairobi Assembly Speaker Beatrice Elachi from impeachment for now, ruling her opponents attacked interim court orders the wrong way.

What this practically means

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Executive summary

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The Petitioner, Speaker of the Nairobi City County Assembly, moved the High Court on 6 September 2018 by urgent motion as she faced impeachment by the County Assembly that afternoon. Onyango PJ certified the matter urgent, admitted the motion as an originating process under Article 22(3)(b), and issued ex parte conservatory orders restraining her removal, restraining interference with her duties, and staying the impeachment, with directions to file the Petition by 7 September 2018. Both Respondents filed notices of preliminary objection arguing, inter alia, that the motion was incompetent (no Petition on record, affidavit sworn by a third party), that the Court lacked jurisdiction over an incomplete parliamentary process, and that the orders contradicted the Supreme Court's Mate decision on conservatory orders against county assemblies. Radido J declined to uphold the objections, holding that a discretionary ex parte order cannot properly be attacked by preliminary objection - the proper course being review before or appeal from the judge who issued the orders. The Mate decision was read as projecting judicial restraint but containing no express bar to intervention, requiring case-by-case methodical inquiry on the merits. The Court also cautioned that preliminary objections against interlocutory ex parte orders should be exceptional. The objections were dismissed, the interim orders extended pending directions before Onyango PJ on 17 September 2018, with costs in the cause. Late-filed submissions of the 2nd Respondent were not considered. Tags: separation-of-powers, conservatory-orders, preliminary-objection, jurisdiction, county-government, devolution.

Key legal issues

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01

Whether a preliminary objection was a proper vehicle to challenge the ex parte conservatory orders

Holding

No - the objections were dismissed; the proper course was review or appeal from the judge who granted the orders.

Reasoning

The Court noted that a concurrent court (Onyango PJ) had admitted the motion as an originating process and issued the orders after appreciating the circumstances then obtaining, including urgency. Since the factual basis of that discretion remained unchallenged via preliminary objection, the objection route failed; review or appeal was the proper avenue, especially given the risk of the objection court and trial court reaching different conclusions on the same legal questions.

p. 6
02

Whether the High Court lacks jurisdiction over county assembly impeachment of a Speaker on separation-of-powers and political-question grounds

Holding

Not determined at this stage; the Mate decision binds the Court but contains no express prohibition on intervention, and the question is one for the merits after a full methodical inquiry.

Reasoning

The Court read the Mate case as projecting reluctance, restraint and deference, requiring case-by-case examination rather than blanket non-justiciability. A methodical and conscientious inquiry into whether the Assembly acted within the constitutional scheme requires all parties to bring forth facts and law, which preliminary objections seek to suppress. The Respondents' powerful arguments should be addressed at the hearing of the motion on the merits.

p. 8
03

Whether the motion was procedurally defective for lack of an accompanying Petition and an affidavit sworn by the Petitioner

Holding

The orders were granted under Article 22(3)(b) after admitting the motion as an originating process with a direction to file the Petition by the next day; this was a judicial discretion not assailable by preliminary objection.

Reasoning

The Petitioner had requested, and was granted, leave to file the Petition by close of 7 September 2018, which she complied with. The Court appreciated the urgency (the Petitioner was at an official function in Malindi when notified of the 3.00pm impeachment). Article 48 access to justice and the need to avoid technicality-laden justice were noted by the Petitioner's side; the Respondents' formalism arguments were left to the merits hearing.

p. 2

Legal principles established

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  • An interlocutory discretionary order (such as a conservatory order issued ex parte) cannot properly be challenged through a notice of preliminary objection; the remedy is review before, or appeal from, the judge who issued the order.
  • Challenging interlocutory ex parte orders through notices of preliminary objection should be the exception rather than the norm.
  • A court may issue an effective interim remedy where an infringement or threatened infringement of a fundamental right is demonstrated; the Mate decision does not expressly prohibit judicial intervention in parliamentary processes, which must be examined case by case.

Court orders

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  1. 1.The notices of preliminary objection by the 1st and 2nd Respondents are dismissed
  2. 2.Parties to appear before Onyango PJ on 17 September 2018 to take directions on the accelerated hearing of the pending motion and Petition
  3. 3.The ex parte interim orders issued on 6 September 2018 are extended until the appearance before Onyango PJ
  4. 4.Costs in the cause

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 1(1),(2); 22; 22(3)(b); 23; 24; 27; 48; 109; 163(3)(a),(b); 163(4); 165; 178; 178(3)
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013General (Mutunga Rules)
  • Judicature ActNot specified
  • County Governments Act, No. 17 of 2012Section 11
  • National Assembly (Powers and Privileges) ActNot specified
  • County Assemblies Powers and Privileges ActNot specified
  • Nairobi City County Standing OrdersStanding Order No. 65
  • Civil Procedure RulesNot specified

Cases cited (8)

  • Justus Kariuki Mate & Another v Hon. Martin Nyaga Wambora & Ar
    Supreme Court Petition No. 32 of 2014 (2017) eKLR
  • Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others
    Supreme Court Application No. 5 of 2014
  • Patrick Ouma Onyango & 12 Others v Attorney General & 2 Others
    (2005) eKLR
  • Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd
    (1969) EA 696
  • Speaker of the Senate & Another v Attorney General & 4 Others
    Reference No. 2 of 2013; (2013) eKLR
  • Kihara v Barclays Bank Kenya Ltd
    (2001) 2 EA 420
  • Njoroge Kironyo and others v Kironyo Njoroge
    (1976) KLR 109
  • Alfred Mwai Kariuki v Kenya Commercial Bank Ltd & Another
    (2012) eKLR
Jurisdiction invoked
Articles 22, 23 and 165 of the Constitution; Article 22(3)(b) as read with the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013; Judicature Act and inherent powers of the Court

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, "Beatrice Kedeveresia Elachi v Nairobi City County Assembly Service Board & another [2018] KEELRC 1211 (KLR)", Case Analysis (2018). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1211/eng@2018-09-14

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