Republic v County Secretary, County Government of Tharaka Nithi & another Ex-Parte Kenneth Ntwiga Kanga [2018] KEELRC 1794 (KLR)
The bottom line
#A Kenyan court quashed a county board secretary's compulsory leave because removing him without the required County Assembly approval was unlawful.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the court over judicial review in employment matters
The court has jurisdiction notwithstanding the rule in R v East Berkshire Health Authority ex parte Walsh, since judicial review examines process rather than merits and remedies are available where employment is statutorily underpinned.
The court reasoned that judicial review does not deal with the merits but with whether the decision-maker had jurisdiction, heard affected persons, and followed correct procedure. It adopted Odunga J's decision in Kenya Universities Staff Union and the Court of Appeal's KIPPRA decision holding that judicial review remedies are available where a contract of employment has statutory underpinning or fundamental rights are grossly violated. The Secretary's removal is governed by statute, so process-based review lies.
Lawfulness of the compulsory leave decision
The decision was unlawful because the suspension operated as a removal not sanctioned by the County Assembly as Section 58(5) requires, and it was quashed by certiorari.
Section 58(5) of the County Governments Act permits removal of Board members only on grounds set out for removal of constitutional commission members under Article 251(1) and by a seventy-five percent vote of the county assembly. The compulsory leave was in effect a removal that was never sanctioned by the County Assembly, and the removal of the previous County Secretary was likewise not shown to comply with Section 58(b). Certiorari therefore issued.
Whether to suspend the effect of the quashing order
The court suspended the effect of the certiorari order for 30 days to allow the Board to regularise the office lawfully.
Because the office of Secretary already had a substantive holder installed pursuant to Section 58, immediate quashing would create disruption. The court, balancing the illegality found against administrative continuity, suspended the effect of its order for thirty days to enable the 2nd Respondent to comply with the resolutions necessary to effect the changes lawfully.
Legal principles established
#- Judicial review concerns the process by which a decision is reached, not the merits of the decision.
- Judicial review remedies are available in employment matters where the contract of employment has statutory underpinning.
- Removal of the Secretary of a County Public Service Board must comply with Section 58(5) of the County Governments Act, including a vote of not less than seventy five percent of all members of the county assembly.
Court orders
#- 1.Order of certiorari to bring into the court and quash the decision contained in the letter dated 11th September 2017 sending the ex-parte Applicant on compulsory leave
- 2.Suspension of the effect of the certiorari order for 30 days to enable the 2nd Respondent comply with the resolutions necessary to effect lawful changes in the office of Secretary of the Tharaka Nithi County Public Service Board
- Jurisdiction invoked
- Judicial review jurisdiction in employment matters, resting on Article 162(2) and 165(5) of the Constitution and the Employment and Labour Relations Act, as interpreted in Kenya Universities Staff Union v University Council of Masinde Muliro University
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v County Secretary, County Government of Tharaka Nithi & another Ex-Parte Kenneth Ntwiga Kanga [2018] KEELRC 1794 (KLR)", Case Analysis (2018). Notice of motion dated 5th December 2017 (Judicial Review). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1794/eng@2018-05-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.