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ELRCDismissedJudicial Review Application - Notice of Motion dated 29th January 2019 (number not stated in judgment)· [2019] KEELRC 948 (KLR)

Republic v Nairobi City County Assembly Service Board & another Ex parte Monica Muthami & 7 others [2019] [2019] KEELRC 948 (KLR)

High Court of Kenya
26 July 2019
MOMaureen Onyango
6,483 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~26 min to read original · ~4 min brief

The bottom line

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The High Court upheld an employer's power to second staff without their consent, dismissing claims that the county board acted unlawfully or in contempt.

What this practically means

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Executive summary

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Eight employees of the Nairobi City County Assembly, led by Monica Muthami, sought judicial review orders of certiorari and prohibition to quash a resolution of the Nairobi City County Assembly Service Board of 12th November 2018, communicated by letter dated 6th December 2018, seconding them to a liaison office in the County Executive. They also sought declarations that the secondment was an unfair labour practice, that the Board was not properly constituted in the absence of the substantive Speaker and the fourth and fifth members, and that its resolutions on employment were null and void. A later motion sought committal of six Board members for contempt of conservatory orders issued on 17th December 2018. The respondents maintained that the secondment implemented Assembly resolutions establishing a liaison office, that the Board was properly constituted with quorum of three (five members sat), that the applicants bypassed internal grievance mechanisms, and that no contempt occurred. Justice Maureen Onyango framed five issues. She held the Board was properly constituted since quorum is three members and absence of the Speaker alone does not invalidate proceedings; that the Board had statutory power under Section 25 of the County Assembly Services Act to second staff, and lack of an established scheme did not render the power illegal; that the applicants' bypass of internal mechanisms was excused because internal processes were unsuited to the urgent reliefs sought; and that no contempt or discrimination was proved. The application was dismissed with each party bearing its own costs.

Key legal issues

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01

Proper constitution of the County Assembly Service Board

Holding

The Board was properly constituted notwithstanding the absence of the Speaker and other members

Reasoning

The Second Schedule to the County Assembly Service Act fixes quorum at three members; the meeting that decided the secondment had five members. Clause 8 provides that proceedings are not invalidated by vacancy or absence of a member. The applicants produced no evidence that the meeting lacked a quorum or was otherwise unlawfully constituted.

p. 5
02

Power to second, transfer or redeploy the applicants

Holding

The Board had statutory power under Section 25 of the County Assembly Services Act and the secondment was lawful

Reasoning

Section 25(c) empowers the Board to provide for secondment of staff and transfer of service in schemes of service. The HR Manual also regulates secondment for up to three years. The secondment arose from Assembly resolutions establishing a liaison office, and terms and conditions of service remained unchanged. Absence of an established scheme of service does not render the statutory power illegal.

p. 7
03

Exhaustion of internal dispute resolution mechanisms

Holding

The applicants' resort to court was not fatal

Reasoning

Although Section 9(2) of the Fair Administrative Action Act generally requires exhaustion of internal remedies, the court found exceptional justification: internal public service processes are slow and could not deliver the urgent reliefs sought. The internal mechanisms would not have been suitable for the nature of the reliefs in judicial review proceedings brought under urgency.

p. 8
04

Contempt of court orders

Holding

No contempt proved

Reasoning

The respondents explained that office movements were part of a Board-approved reorganization of departments following creation of new departments, and that the applicants retained their offices. The court found the applicants' allegations of relocation, stripping of duties and intimidation unsubstantiated by evidence.

p. 8

Legal principles established

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  • Absence of a member, including the Speaker, does not invalidate Board proceedings where quorum exists
  • A statutory power cannot be rendered illegal merely because implementing procedures or schemes have not been put in place
  • An employee need not be consulted before transfer, secondment or redeployment

Court orders

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  1. 1.Dismissal of the ex parte applicants' Notice of Motion dated 29th January 2019 and the related applications
  2. 2.Each party to bear its own costs

Authorities

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Legislation

  • Law Reform Act (Cap 26)Section 8
  • Fair Administrative Actions ActSections 7, 9(2), (3) and (4)
  • Civil Procedure RulesOrder 53, Rule 3
  • County Governments ActSections 12(1) and 12(3)
  • County Assembly Services ActSections 5, 11, 16, 25(1)(c), 35, 42, Second Schedule (Sections 6, 7, 8), Second Schedule
  • Constitution of KenyaArticles 10, 48, 118(b), 153(4)(b), 232
  • Judicature ActSection 5(1)
  • Civil Procedure ActSection 63(c)
  • Contempt of Court ActNot specified (declared unconstitutional in cited case)
  • Nairobi City County Assembly Standing OrdersStanding Order No. 193
  • County Assembly HR Policies and Procedural Manual (May 2016)Clauses C.3.0, N13.1, N13.2

Cases cited (11)

  • Republic -V- Fazul Mohammed and 3 others Ex-Parte Okiya Omtatah Okoiti
    [2018] eKLR
  • Kimani Wanyoike -V- Electoral Commission & Another
    [1995] eKLR
  • Speaker of the National Assembly -V- Hon. James Njenga Karume
    Civil Application No. 92 of 1992 (2008) 1KLR 425
  • Nancy Anyango Onyango & 4 others -V- Homa Bay County Assembly Board & 3 others
    [2018] eKLR
  • Gatirau Peter Munya -V- Dickson Mwenda Githinji & 2 others
    [2014] eKLR
  • Cecil Miller -V- Jackson Njeru & Another
    [2017] eKLR
  • Econet Wireless Kenya Limited vs. Minister for Information & Communication of Kenya & Another
  • TSC -V- KNUT & 2 Others
    [2013] eKLR
  • Kenya Human Rights Commission -V- Attorney General & another
    [2018] eKLR, Constitutional Petition No. 87 of 2017
  • Republic –V- Ministry of Interior and Coordination of National Government and Another Ex Parte ZTE
    JR 442/2013
  • Republic –V- NEMA
    CA 84/2010
Jurisdiction invoked
Section 8 of the Law Reform Act (Cap 26), Section 7 of the Fair Administrative Actions Act, Order 53 Rule 3 of the Civil Procedure Rules

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, "Republic v Nairobi City County Assembly Service Board & another Ex parte Monica Muthami & 7 others [2019] [2019] KEELRC 948 (KLR)", Case Analysis (2019). Judicial Review Application - Notice of Motion dated 29th January 2019 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/948/eng@2019-07-26

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