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ELRCAllowedJudicial Review Application (ELRC, Migori)· [2019] KEELRC 1646 (KLR)

Republic of Kenya v County Government of Migori & 2 others; County Assembly of Migori (Interested Party) Ex parte Peterlis Nyatuga & 5 others [2019] KEELRC 1646 (KLR)

Employment and Labour Relations Court
7 May 2019
MNMathews N. Nduma
1,082 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

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A Kenyan court confirmed that governors cannot discipline or remove County Public Service Board members; Migori's forced leave decision was quashed.

What this practically means

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Executive summary

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The exparte applicants, members of the Migori County Public Service Board appointed on 25th July 2013 for six years, sought an order of certiorari to quash a decision of the Migori County Executive Committee, conveyed by the County Secretary's letter dated 21st December 2017, sending them on ninety days' compulsory leave with effect from 21st September 2017. Leave to commence the judicial review had been granted and acted as a stay. The applicants argued that the Board is an independent body established under Article 248 of the Constitution and Section 57 of the County Governments Act, answerable only to the County Assembly under Section 59(5), and that removal is permissible only under Section 58(5) on grounds applicable to members of constitutional commissions under Article 251(1) and by a seventy-five percent vote of the county assembly. The respondents contended that the Governor, as chief executive, had a legitimate public interest in ensuring a fully constituted Board and argued the Board was effectively an agent of the Executive. The court framed two issues: whether the respondents acted ultra vires, and whether the applicants were entitled to relief. Relying on an Attorney-General's advisory opinion by Hon. Githu Muigai and two ELRC decisions (Hussein Roba Boni and Mundia Njeru Gateria) in which governors' disciplinary action against CPSB chairpersons was struck down, the court held the Executive Committee and the Governor lack authority to discipline or remove Board members. Certiorari issued quashing the impugned decision, with costs awarded to the applicants.

Key legal issues

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01

Whether the County Executive Committee may discipline or remove members of the County Public Service Board

Holding

The Executive Committee and the Governor lack authority to discipline or remove County Public Service Board members; the purported compulsory leave was ultra vires and unlawful.

Reasoning

The court relied on Section 58(5) of the County Governments Act, which restricts removal of Board members to the grounds applicable to members of constitutional commissions under Article 251(1) and requires a 75% vote of the county assembly. It further relied on an advisory opinion by the Attorney-General and two ELRC decisions in which governors' disciplinary action against CPSB chairpersons was held ultra vires, and prohibitory and injunctive relief was granted.

p. 3
02

Whether the exparte applicants are entitled to the reliefs sought

Holding

The applicants were entitled to certiorari to quash the decision sending them on compulsory leave.

Reasoning

Having found the Executive Committee's decision ultra vires, unlawful, null and void, the court answered the second issue in the affirmative and granted the reliefs sought, namely certiorari to quash the letter dated 21st December 2017, together with costs against the respondents.

p. 3

Legal principles established

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  • The County Executive Committee and the Governor lack authority to discipline or remove members of the County Public Service Board; removal is only on the grounds and in the manner set out in Section 58(5) of the County Governments Act.

Court orders

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  1. 1.An order of certiorari to remove into the ELRC and quash the decision of the Migori County Executive Committee contained in the letter dated 21st December 2017 by the Migori County Secretary sending the exparte applicants on ninety (90) days compulsory leave with effect from 21st September 2017
  2. 2.The respondents to pay the costs of the suit

Authorities

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Legislation

  • Constitution of KenyaArticles 1, 179, 180, 183(3), 185, 235, 248, 251(1)
  • County Governments ActSections 5(2)(f), 57, 58(5), 59(5)

Cases cited (2)

  • Hussein Roba Boni vs The County Government of Isiolo and 3 others
    ELRC Petition No. 2 of 2016 (Nyeri)
  • Mundia Njeru Gateria vs Embu County Government and 5 others
    (2015) eKLR
Jurisdiction invoked
Judicial review jurisdiction of the Employment and Labour Relations Court; County Governments Act Sections 57, 58(5), 59(5) and Article 248 of the Constitution

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 of Kenya v County Government of Migori & 2 others; County Assembly of Migori (Interested Party) Ex parte Peterlis Nyatuga & 5 others [2019] KEELRC 1646 (KLR)", Case Analysis (2019). Judicial Review Application (ELRC, Migori). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1646/eng@2019-05-07

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