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ELRCPartially AllowedNot stated in excerpt· [2019] KEELRC 368 (KLR)

Bernard Ngeno & another v County Assembly of Bomet & another; Governor,County Government of Bomet (Interested Party) [2019] KEELRC 368 (KLR)

Employment and Labour Relations Court
9 October 2019
MMM. Mbaru
3,417 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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The Employment and Labour Relations Court vacated interim orders that had allowed former Bomet CEC members to keep receiving pay after losing office following the Governor's death.

What this practically means

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Executive summary

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The interested party, Governor of Bomet County, applied under Order 17 of the ELRC (Procedure) Rules, 2016, Order 17 of the Civil Procedure Rules and section 3A of the Civil Procedure Act seeking review, variation or interpretation of interim conservatory orders issued on 28 August 2019 and extended on 9 September 2019, which stayed the decision of the County Assembly of Bomet rejecting the petitioners' re-appointment as County Executive Committee members. The Governor, through Dr Hillary Barchok's affidavit, contended that the petitioners obtained the orders through material non-disclosure and misrepresentation, having ceased to hold office by operation of Article 179(7) of the Constitution upon the death of Governor Dr Joyce Laboso on 29 July 2019. The respondents supported the application, arguing the Assembly's rejection of the nominees on 21 August 2019 was procedurally proper. The petitioners relied on oral submissions, their counsel confirming they were operating under their former contracts. The court, applying Rule 33 of the ELRC (Procedure) Rules and guided by Kithure M'Mwendwa Nyaga v TSC and Simba Hasheem Gedow v Ali Ibrahim Roba, held that upon the Governor's death all CEC members vacated office; the new Governor's re-nomination required County Assembly approval under Article 179(2)(b) and section 30(2) of the County Governments Act, and absent approval and an oath of office under Article 260, the petitioners held no office. The interim orders, which would amount to an unconstitutional reinstatement, were vacated, the payment requirement set aside, and the main petition prioritised for hearing. Costs were not expressly addressed in the orders.

Key legal issues

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01

Whether there is sufficient reason to review, vary or interpret the orders of 28 August 2019

Holding

Yes. The orders, properly interpreted against Articles 179(7) and 260 of the Constitution and section 30(2) of the County Government Act, could not reinstate persons who had ceased to hold office and had not been re-appointed or sworn in; there was material non-disclosure and sufficient reason under Rule 33.

Reasoning

The court traced the effect of the Governor's death: by Article 179(7) all CEC members ceased to hold office. Re-nomination by the new Governor required County Assembly approval under Article 179(2)(b) and section 30(2) of the County Governments Act, and the Assembly rejected the petitioners. Without approval and an oath of office under Article 260, the petitioners held no office; the interim orders therefore operated as an unconstitutional reinstatement and were vacated to allow the main petition to be heard.

p. 5
02

Whether the petitioners held office or were entitled to salaries and benefits pending the petition

Holding

No. The petitioners were not appointed CEC members, took no oath of office, and confirmed they were operating under their former contracts; the payment requirement was set aside.

Reasoning

The court found the petitioners failed to disclose that their re-appointment had not been approved by the County Assembly. Under Article 260 one cannot assume a state office before taking the prescribed oath. Their counsel confirmed they operated under former contracts, which the court accepted without analysing the merits of the petition.

p. 4

Legal principles established

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  • Upon a vacancy in the office of county governor, members of the county executive committee appointed under Article 179(2)(b) cease to hold office, and a person cannot act as or enjoy the benefits of a CEC member without appointment with the approval of the county assembly and taking the oath of office under Article 260
  • The court has power to review, vary, clarify or interpret its own orders under Rule 33 of the ELRC (Procedure) Rules, 2016 on the recognised grounds including sufficient reason

Court orders

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  1. 1.The interim orders issued on 28th August 2019 and extended to date are vacated
  2. 2.The requirement to pay the petitioners under any terms of engagement with the County Government of Bomet is set aside
  3. 3.On the main petition, parties shall be heard on a priority basis

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 179(2)(b), 179(7), 182(1)(a), 260, 27(1), 10(2), 50(1)
  • County Government Actsections 8(1), 14(3), 30(2), 35
  • Public Appointment (County Assemblies Approval) Act, 2017Not specified
  • Civil Procedure Actsection 3A
  • Civil Procedure RulesOrder 17 Rule 2(1) and 2(3)
  • Employment and Labour Relations Court (Procedure) Rules, 2016Order 17 Rule (1) and (8); Rule 33

Cases cited (2)

  • Kithure M'Mwendwa Nyaga versus Teacher Service Commission
    [2019] eKLR
  • Simba Hasheem Gedow versus Ali Ibrahim Roba - Governor, County Government of Mandera & 2 others
    [2018] eKLR
Jurisdiction invoked
Rule 33 of the Employment and Labour Relations Court (Procedure) Rules, 2016; Order 17 of the Civil Procedure Rules; section 3A of the Civil Procedure Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Bernard Ngeno & another v County Assembly of Bomet & another; Governor,County Government of Bomet (Interested Party) [2019] KEELRC 368 (KLR)", Case Analysis (2019). Not stated in excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/368/eng@2019-10-09

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