Republic v Lee Kinyanjui Maiyani Governor Nakuru County Government & Benjamin Njoroge County Secretary Nakuru County Governemnt Ex parte James K Mbugua,Peter Murithi Mwarania & Monica Cherutich (Judicial Review Application 1 of 2019) [2019] KEELRC 1759 (KLR)
The bottom line
#A Kenyan court confirmed that judicial review can target county officials in their official capacity, and dismissed objections trying to block the case.
What this practically means
#Executive summary
#Key legal issues
#Proper respondents in judicial review proceedings
The preliminary objections were without merit; judicial review orders can issue against the respondents in their official capacity premised on sections 57, 58 and 59 of the County Government Act
The court relied on the Schon Noorani decision: the focus is no longer whether the function was public or private, but whether the function was judicial or quasi-judicial and affected constitutional rights such as fair administrative action under Article 47 or natural justice under Article 50. The proceedings were brought against the respondents in their official capacity under the County Government Act, and Article 23(3)(d) read with Article 159(2)(d) required the court to address the substantive issues.
Jurisdiction absent employer-employee relationship
The issue of whether an employer-employee relationship exists is a substantive issue that cannot be determined at the preliminary objection stage
The respondents argued that without an employer-employee relationship the proceedings should have been filed in the High Court, citing Mary Wambui Mutonyi. The court held that delving into that question would amount to going into the merits of the motion at the preliminary stage. It declined to determine it but cautioned the ex parte applicants to introspect on the matter.
Legal principles established
#- Under Article 23(3)(d) of the Constitution, judicial review is now a remedy the court can grant even against persons in official capacity where constitutional rights are engaged
- Procedural requirements of Rule 7 ELRC Rules and Order 53 remain alive notwithstanding Article 23(3)(d)
Court orders
#- 1.The preliminary objections are found without merit and are declined
- 2.No costs awarded as the objections raise important matters of law
- Jurisdiction invoked
- Article 23(3)(d) and Article 159(2)(d) of the Constitution, 2010; sections 57, 58 and 59 of the County Government Act, 2012; Rule 7(2) ELRC (Procedure) Rules, 2016; sections 8 and 9 of the Law Reform Act and Order 53 Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Lee Kinyanjui Maiyani Governor Nakuru County Government & Benjamin Njoroge County Secretary Nakuru County Governemnt Ex parte James K Mbugua,Peter Murithi Mwarania & Monica Cherutich (Judicial Review Application 1 of 2019) [2019] KEELRC 1759 (KLR)", Case Analysis (2019). Not stated in the extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1759/eng@2019-04-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.