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ELRCPartially AllowedPetition dated 31st August, 2017 (Bungoma)· [2018] KEELRC 2105 (KLR)

Bungoma County Public Service Board & 6 others v Governor, County Government of Bungoma & 5 others [2018] KEELRC 2105 (KLR)

Employment and Labour Relations Court
12 April 2018
MNMathews N. Nduma
1,879 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled that county assemblies cannot remove county public service board members without meeting strict constitutional requirements, and reinstated the sacked Bungoma board members.

What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court at Bungoma, delivered by Mathews N. Nduma, Judge, on 12th April 2018, determined three consolidated applications in a petition by members of the Bungoma County Public Service Board challenging their removal from office. The Board members had been summarily dismissed by letters of 7th December 2017 issued by the Acting County Secretary pursuant to a resolution of the County Assembly of Bungoma. The court held that the Petitioners had established a prima facie case that the County Assembly acted ultra vires its statutory mandate: under section 58(5) of the County Governments Act, members of a County Public Service Board may only be removed on the grounds applicable to constitutional commissions under Article 251(1) of the Constitution and by a seventy-five percent vote of the Assembly, requirements the ten-member adoption schedule did not satisfy. Applying the Supreme Court's guidance in Gitirau Peter Munya and the Court of Appeal's holding in the County Assembly of Kisumu case, the court confirmed the interim conservatory orders and allowed the Petitioners back to office. The application to have the offices of the Board unlocked and access granted was also allowed in its entirety. However, the contempt application against the Governor and the County Government was dismissed, the court finding no willful disregard of the 11th December 2017 order, though warning that contempt would be found summarily if the ruling was not complied with upon service. Costs were awarded in the cause.

Key legal issues

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01

Whether conservatory orders should issue restraining the 1st Respondent from acting on the recommendation to remove the Petitioners from office

Holding

The Petitioners established a prima facie case that the County Assembly acted ultra vires its statutory mandate in recommending removal; conservatory orders were granted in terms of prayer 3 of the Notice of Motion.

Reasoning

The court, cautious not to pre-empt the substantive petition, was satisfied by prima facie evidence. The Petitioners held a six-year term not expired, yet were summarily dismissed by letters from the 4th Respondent pursuant to a County Assembly resolution. Section 58(5) of the County Governments Act and Article 251(1) prescribe strict removal grounds and a 75% Assembly vote, which the adoption schedule signed by ten members did not satisfy. Public interest in protecting independent offices from unlawful interference favoured granting the orders.

p. 3
02

Whether the 1st and 3rd Respondents were in willful defiance of the order of 11th December, 2017

Holding

The application for contempt was dismissed, but with a caution that contempt would be found and sentence meted out without further reference to the Respondents if the ruling was not complied with upon service.

Reasoning

The court found no willful disregard of the 11th December 2017 order established against the Governor and the County Government. However, it retained supervisory power: non-implementation of the ruling after personal service on the Governor or appropriate officer would trigger a contempt finding on application, without further hearing, safeguarding the effectiveness of the conservatory orders.

p. 4
03

Whether the offices of the Board, allegedly locked on 14th December, 2017, should be unlocked and access granted

Holding

The application dated 6th February, 2018 was granted in its entirety, directing the 1st and 2nd Respondents to unlock the offices and grant the Chairman and members access and facilitate the Board's functioning.

Reasoning

In the same vein as the grant of conservatory orders, the court directed that the locked offices be opened to allow the Board to function. This flowed from the court's finding that the removal was prima facie ultra vires and that there should be no void in the governance of the County, with independent offices protected from unlawful interference by the executive or legislative arms of the County Government.

p. 4

Legal principles established

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  • County Service Boards do not exist at the pleasure of County Assemblies or any other state organ and cannot be disbanded, dissolved or suspended by County Assemblies.
  • Members of a County Public Service Board may only be removed on grounds set out for removal of members of a constitutional commission under Article 251(1) of the Constitution and by a vote of not less than seventy-five percent of all members of the County Assembly.
  • Conservatory orders are granted on the inherent merit of a case, bearing in mind the public interest and constitutional values, and are not tied to private-law tests of irreparable harm or high probability of success.

Court orders

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  1. 1.The interim conservatory order granted on 11th December, 2017 is confirmed and the Petitioners be allowed back to office immediately.
  2. 2.The office of the Bungoma County Public Service Board be opened, forthwith and the petitioners/applicants be granted access.
  3. 3.The application to commit the 1st and 2nd Respondents for contempt of court orders issued on 11th December, 2017 is dismissed with a caution that the same would be revisited in the event the ruling of this court is not complied with forthwith.
  4. 4.Costs in the cause.

Authorities

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Legislation

  • County Governments Act, No. 17 of 2012section 58(5), section 58(5)(b), section 57, section 44(1)
  • Constitution of Kenya, 2010Article 251(1) and (2), Article 232(1)(a)(b) and (2), Chapter Six

Cases cited (3)

  • Dr. Alfred Mutua vs EACC & 4 others
    Court of Appeal at Nairobi Civil Appeal No. 31 of 2016 [2016] eKLR
  • Gitirau Peter Munya vs Dickson Mwende (Dickson Mwenda Githinji & 2 others)
    [2014] eKLR
  • County Assembly of Kisumu & 2 others Vs Kisumu County Assembly Service Board & 6 Others
    [2015] eKLR
Jurisdiction invoked
Constitutional petition under the County Governments Act, No. 17 of 2012 (including section 58(5)) read with the Constitution (Articles 251(1) and 232)

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, "Bungoma County Public Service Board & 6 others v Governor, County Government of Bungoma & 5 others [2018] KEELRC 2105 (KLR)", Case Analysis (2018). Petition dated 31st August, 2017 (Bungoma). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2105/eng@2018-04-12

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