Khalid v The County Assembly of Mombasa & 2 others (Petition 342 of 2014) [2018] KEELRC 1375 (KLR)
The bottom line
#A Kenyan court ruled a county executive's impeachment unlawful because the Assembly ignored a committee's clearance, awarding him Kshs. 12 million instead of reinstatement.
What this practically means
#Executive summary
#Key legal issues
#Breach of section 40 of the County Government Act
The County Assembly acted unlawfully by entertaining further impeachment proceedings after the select committee found the allegations unsubstantiated
Section 40(5)(a) of the CG Act is mandatory: where the select committee reports the allegations unsubstantiated, no further proceedings shall be taken. The select committee gave the petitioner a chance to defend himself, considered oral and documentary evidence, and found all allegations unsubstantiated. The Assembly nonetheless proceeded to an impeachment resolution on 24.7.2014, acting ultra vires the statute.
Violation of the right to fair administrative action under Article 47
The reopening of proceedings after acquittal by the select committee violated Article 47 and Article 236(b) of the Constitution
The further proceedings amounted to reopening an already closed case; under section 40(5)(a) proceedings ended by operation of law. The petitioner had no opportunity to participate or defend himself in the plenary proceedings, and the dismissal letter of 30.7.2014 did not state reasons for the dismissal, breaching Article 47(2).
Entitlement to reliefs
Declaration granted, certiorari granted (without reinstatement), and damages of Kshs. 12,000,000 awarded
The Court, under Article 23(3)(e) of the Constitution and section 12 of the ELRC Act, has jurisdiction to award compensation for constitutional violations. Considering the petitioner's rank and the protection of Article 236, Kshs. 8,000,000 was awarded for unlawful removal and Kshs. 4,000,000 for loss of income, since reinstatement was impracticable due to lapse of time and change of government.
Legal principles established
#- Once a select committee under section 40(5)(a) of the County Government Act finds allegations against a County Executive Committee Member unsubstantiated, no further proceedings may be taken against him
- Removal of a public officer must follow due process; failure to follow the mandatory statutory procedure violates Article 47 and Article 236(b) of the Constitution
Court orders
#- 1.A declaration that the first respondent's recommendation for the impeachment and removal from office of the petitioner was unconstitutional and unlawful on account of violation of section 40 of the County Government Act as read with Article 47 and 236 of the Constitution
- 2.An order of certiorari to quash the proceedings and recommendation by the first respondent for impeachment of the petitioner, without restoring him to office
- 3.Damages of Kshs. 8,000,000 for the unlawful and unconstitutional removal from office
- 4.Damages of Kshs. 4,000,000 for loss of income and salary
- 5.Costs of the petition plus interest from the date of judgment until payment in full, the award subject to statutory deductions
- Jurisdiction invoked
- Article 165(5) of the Constitution read with Article 23 of the Constitution and Section 12 of the ELRC Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Khalid v The County Assembly of Mombasa & 2 others (Petition 342 of 2014) [2018] KEELRC 1375 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1375/eng@2018-07-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.