Republic v County Assembly of Samburu Exparte Raphael Lemitin, Mark Lcharuni & Samburu Water and Sanitation Company; County Government of Samburu (Interested Party) [2019] KEELRC 1705 (KLR)
The bottom line
#The High Court stopped Samburu County Assembly from disbanding a water company's board, confirming that county assemblies cannot override a company's independent corporate powers.
What this practically means
#Executive summary
#Key legal issues
#Whether the County Assembly of Samburu acted ultra vires in recommending reconstitution of the company's board
Yes - the company has an independent corporate existence under the Companies Act and its directors' mandate cannot be circumvented by the respondent's resolution
Both parties agreed the 3rd applicant is a body corporate under the Companies Act with articles of association and its own legal existence. Although the respondent has oversight over county organs and water is a devolved function, the company's corporate persona gives its directors the mandate to run its affairs, including audits of resources. Reversing to the assembly to recommend board reconstitution in 90 days was without power and ultra vires, justifying prohibition and certiorari.
Whether an order of prohibition can issue where a decision has already been made and adopted
Prohibition may issue to restrain continued implementation of an ultra vires process; it is not confined to pre-decision situations
The court adopted the principles in Kenya National Examination Council v Republic ex parte Geoffrey Gathenji Njoroge and Kuria & others v AG, that prohibition lies for excess of jurisdiction, absence of jurisdiction or departure from natural justice, and may issue where the process is an abuse even after commencement. The respondent's ultra vires recommendation and its adoption warranted prohibition against implementation.
Legal principles established
#- An order of prohibition lies against a body acting in excess of its jurisdiction or in contravention of the laws of the land, including departure from the rules of natural justice
- Judicial review is concerned with the decision-making process and legality, not the merits of the decision
- The corporate mandate of a legally incorporated company's directors cannot be circumvented by a county assembly resolution; to do so is ultra vires
Court orders
#- 1.An order of prohibition do issue directed at the respondent, the County Assembly of Samburu and the Interested party, The County Government of Samburu in respect of the implementation of the report and recommendations to reconstitute the 3rd respondent board as recommended and adopted from the Special Report on Samburu Water and Sanitation Company Report
- 2.Such decision by the respondent is hereby quashed
- 3.Each party shall bear own costs
- Jurisdiction invoked
- Judicial review jurisdiction of the High Court (orders of prohibition and certiorari)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v County Assembly of Samburu Exparte Raphael Lemitin, Mark Lcharuni & Samburu Water and Sanitation Company; County Government of Samburu (Interested Party) [2019] KEELRC 1705 (KLR)", Case Analysis (2019). Judicial Review Notice of Motion dated 7th February, 2019 (ex parte applicants' application). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1705/eng@2019-04-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.