Beatrice Kedeveresia Elachi v Nairobi City County Assembly Service Board & another [2019] KEELRC 1717 (KLR)
The bottom line
#Kenya's Employment Court nullified the Nairobi Assembly Speaker's impeachment because she was given under two hours' notice and no fair chance to respond.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the ELRC over impeachment of a County Assembly Speaker
The Court has jurisdiction: employment rights of the Speaker fall within Article 41, and Articles 47 and 50 are engaged; the court confines itself to procedure, not merits of legislative business.
The Court, established under Article 162(2) and the ELRC Act, has High Court status and jurisdiction under Article 165(3)(b) over rights violations arising from employment relationships. Judicial authority is exercised cautiously given separation of powers, but fair hearing and fair administrative action rights are non-derogable, so the Court interrogates the procedures. The issue was already settled by Radido J's ruling of 14th September 2018 dismissing the preliminary objection.
Competency of proceedings commenced by notice of motion and sworn by the Petitioner's personal assistant
The proceedings are competent; the affidavit by the personal assistant was authorised and the motion was admitted as an originating process under Article 22(3)(b) due to urgency.
Sections 4(4) and 5(2)(b) of the County Assembly Services Act preclude assembly members from influencing Service employees, not the swearing of an affidavit by a personal assistant. Rule 10(2) of the Mutunga Rules permits the petition to be signed by the advocate, and Rule 10(3) and Article 159(2)(d) favour substantive justice. The motion had been admitted as originating process on 6th September 2018.
Whether the impeachment violated the Petitioner's rights to fair hearing and fair administrative action
Yes. The special sitting request did not disclose the impeachment purpose, Standing Order 65 was amended to remove procedural safeguards, and the Petitioner received inadequate notice and no opportunity to respond.
The request and gazette notice did not indicate the sitting concerned impeachment. The amendment of Standing Order 65 removed the ad hoc committee and notice requirements and was tabled before the wrong committee contrary to Standing Order 247. Service of summons at 1.30 pm for a 3.10 pm sitting on four charges lacking particulars fell short of section 4(3) of the Fair Administrative Action Act, Article 47 and Article 50, and section 11(4) of the County Governments Act required an opportunity to respond on the floor.
Whether separation of powers barred judicial intervention and whether damages should replace the orders sought
Intervention was warranted because the respondents acted with ulterior motive and violated the Constitution; damages were inappropriate since conservatory orders had preserved the status quo.
Following Wambora and Speaker of the Senate, courts exercise restraint but may intervene where Standing Orders with constitutional underpinning are breached. Here the Assembly deliberately overthrew its own protections. Since interim orders had maintained the Petitioner in office since the impeachment, awarding damages would condone disobedience of court orders per Hadkinson v Hadkinson.
Legal principles established
#- Where a question of a right or fundamental freedom in employment and labour relations is raised, the ELRC has jurisdiction notwithstanding that the decision impugned is that of a legislative organ; separation of powers does not oust scrutiny of procedures that violate constitutional rights.
- A speaker of a county assembly is a public officer protected under Article 236 from removal without due process, and service of summons 1 hour 40 minutes before proceedings on four unspecified charges does not constitute a fair hearing.
- Amendment of Standing Orders to remove procedural protections with the ulterior motive of removing an office-holder is an abuse of power that courts may intervene against despite separation of powers.
Court orders
#- 1.Declaration that the 2nd Respondent's purported impeachment of the Petitioner on the afternoon of 6th September 2018 breached her rights under Articles 27(1), 27(2), 27(3), 41, 47(1) and 50
- 2.Declaration that the purported Committee of the Whole House had no powers or jurisdiction to impeach the Petitioner as Speaker absent due process
- 3.Injunction and prohibition against the 2nd Respondent restraining any Motion to remove the Petitioner in violation of fair administration and due process
- 4.Order quashing and nullifying the decision impeaching the Petitioner made on 6th September 2018
- 5.Order of judicial review in the nature of certiorari to quash the decision of 6th September 2018 impeaching the Petitioner
- 6.Order of judicial review in the nature of prohibition against the 1st and 2nd Respondents carrying out any removal process without complying with the law and Standing Orders
- 7.Order quashing and nullifying the decision amending the Standing Orders of Nairobi City County Assembly made on 6th September 2018
- 8.The 1st Respondent restrained from interfering with the Petitioner's terms of employment as Speaker in consequence of the purported impeachment
- 9.The 2nd Respondent to pay the Petitioner's costs
- Jurisdiction invoked
- Article 162(2) of the Constitution read with section 4(1) of the Employment and Labour Relations Court Act; Articles 22, 23 and 165(3)(b)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Beatrice Kedeveresia Elachi v Nairobi City County Assembly Service Board & another [2019] KEELRC 1717 (KLR)", Case Analysis (2019). Petition (with Notice of Motion dated 6th September 2018) — ELRC, Nairobi. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1717/eng@2019-05-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.