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ELRCDismissedPetition dated 17th May 2017 (EACC CR. 2 of 2017 referred to in pleadings)· [2018] KEELRC 2034 (KLR)

Martin Wafula Wamukota v Speaker County Assembly of Trans Nzoia & 2 other [2018] KEELRC 2034 (KLR)

Employment and Labour Relations Court of Kenya
10 May 2018
MOMaureen OnyangoMNMathews Nderi Nduma
2,128 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court dismissed a citizen's challenge to county officials' suspensions because he had no legal right to sue on their behalf.

What this practically means

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Executive summary

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The Speaker, Clerk and Driver of the County Assembly of Trans Nzoia, together with 38 Members of the County Assembly, were charged in the Anti-Corruption Court, Eldoret with abuse of office and, in the case of the Clerk and Driver, fraudulent acquisition of public property under the Anti-Corruption and Economic Crimes Act. Following a letter from the Ethics and Anti-Corruption Commission dated 28th February 2017 requiring administrative action under Section 62(1) of that Act, the Speaker suspended the Clerk, Ainea O. Indakwa, and the Driver, John Simiyu Barasa. A petitioner, describing himself as a citizen of Trans Nzoia County, filed an unopposed petition seeking declarations that the suspension violated Articles 41(1) and 47(1) of the Constitution and the Fair Administrative Action Act, orders of certiorari to quash the suspension, mandamus directing the County Assembly Service Board to lawfully suspend the officers, and damages. The court framed two issues: the petitioner's locus standi and his entitlement to the reliefs sought. The court found that the petitioner lacked standing under Article 22: it was not shown that the Clerk and Driver could not act in their own name, that he had a direct interest, or that the matter was of public interest. On the merits, the court held that Section 62 of the Anti-Corruption and Economic Crimes Act is mandatory and self-acting, requiring no hearing and no Board resolution, and that the Chairman of the Service Board merely effected the EACC's instructions. The petition was dismissed.

Key legal issues

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01

Locus standi of the petitioner to sue on behalf of the Clerk and Driver

Holding

The petitioner lacked capacity under Article 22; it was not shown the Clerk and Driver could not act in their own name, that he had a direct interest, or that the matter was one of public interest

Reasoning

Article 22(2) permits proceedings by a person acting on behalf of another who cannot act in their own name, in the interest of a group or class, in the public interest, or by an association. The applicant described himself only as a citizen of Trans Nzoia and did not demonstrate how the administrative actions affected him, that the suspended officers were incapable of suing, or that the suspension raised a matter of public interest. On that ground alone the petition was unsustainable.

p. 3
02

Whether the suspension by the Chairman of the County Assembly Service Board without a Board resolution was unlawful

Holding

The suspension was lawful; Section 62 of the Anti-Corruption and Economic Crimes Act is self-acting and the Chairman merely effected the EACC's directive

Reasoning

Section 62 is couched in mandatory terms and does not require a hearing before action is taken. The EACC letter directed the Chairman to take administrative action against the Speaker, Clerk and Driver in accordance with Section 62. The only process the Clerk and Driver were to face was the criminal proceedings, so there was no role for the County Assembly Service Board necessitating a meeting and resolution.

p. 3

Legal principles established

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  • Enforcement of the Bill of Rights under Article 22 may only be sought by a person directly affected, on behalf of persons who cannot act in their own name, as a member or in the interest of a group, in the public interest, or by an association acting for a member
  • Section 62 of the Anti-Corruption and Economic Crimes Act is mandatory and self-acting: a public officer charged with a corruption or economic crime is suspended at half pay from the date of the charge until conclusion of the case, without any hearing

Court orders

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  1. 1.The application dated 17th May 2017 is dismissed

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 22(1) and (2)
  • Constitution of Kenya, 2010Article 41(1)
  • Constitution of Kenya, 2010Article 47(1) and (3)
  • Anti-Corruption and Economic Crimes Act, No. 3 of 2003Section 46 as read with Section 48(1)
  • Anti-Corruption and Economic Crimes Act, No. 3 of 2003Section 45(1)A as read with Section 48
  • Anti-Corruption and Economic Crimes Act, No. 3 of 2003Section 62(1)
  • County Government Act, 2012Section 12
  • Fair Administrative Action Act, 2015Section 4(2) and (3)
Jurisdiction invoked
Article 22 of the Constitution of Kenya 2010 (enforcement of Bill of Rights)

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, "Martin Wafula Wamukota v Speaker County Assembly of Trans Nzoia & 2 other [2018] KEELRC 2034 (KLR)", Case Analysis (2018). Petition dated 17th May 2017 (EACC CR. 2 of 2017 referred to in pleadings). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2034/eng@2018-02-09

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