Makal Loluka Solomon & 3 others v Speaker County Assembly of Baringo & another [2019] KEELRC 1835 (KLR)
The bottom line
#Baringo County Assembly had no legal power to disband its County Service Board; only the Employment and Labour Relations Court's strict removal process applies.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the ELRC over the dispute
The court has jurisdiction under Article 162(2) and section 12 of the ELRC Act since the dispute concerns the stoppage of the petitioners' terms of office, an employment and labour relations matter.
The petitioners were appointed through a competitive process, gazetted on 22nd February 2018, serve, are paid and are accountable to the 2nd respondent. The decision to disband the Board affects their terms of office. Such provisions cannot be severed from the court's jurisdiction; the Political Parties Act and Political Parties Disputes Tribunal have no relevance.
Removal of Board members under section 58 County Government Act
Having been properly appointed to non-renewable six-year part-time terms, the petitioners can only be removed under section 58(5) - grounds in Article 251(1) and a 75% vote of the County Assembly - which was not followed.
Members are appointed competitively and hold office under section 58(4). The Court of Appeal's decision in the Kisumu County Assembly Service Board case binds: County Service Boards do not exist at the pleasure of County Assemblies, which cannot disband or dissolve them. The 13th November 2018 resolution was therefore legally flawed.
Applicability of section 77 County Government Act and section 74 Public Service Act, and the Political Parties Tribunal
These provisions do not apply; the matter is not one for the Public Service Commission or the Political Parties Disputes Tribunal.
Given the finding on jurisdiction and the protections of section 58 of the County Government Act read with Article 251(1), the internal remedies invoked by respondents do not apply, and the Tribunal's mandate is lost. This is not a dispute under section 48 of the Political Parties Act or between the respondents and a political party.
Standing of Maccah Hamisi in a representative suit
The written authority executed by the 1st, 2nd and 4th petitioners suffices; the objection to standing fails, though the affidavit's paragraphs 1 and 2 are in conflict.
Article 22 of the Constitution governs representative suits. Although paragraphs 1 and 2 of the supporting affidavit conflict, a letter of Written Authority signed by the 1st, 2nd and 4th petitioners was attached, which should suffice to allow the court to address the substance of the matters in issue.
Legal principles established
#- County Assembly Service Boards are independent of County Assemblies, which have no authority to disband or dissolve them
- Members of a County Public Service Board may only be removed on grounds in Article 251(1) of the Constitution and by a 75% vote of the County Assembly
- The ELRC is clothed with jurisdiction to hear constitutional issues arising from employment and labour relations
Court orders
#- 1.The preliminary objections are found without merit and dismissed
- 2.No orders as to costs
- 3.The file to be removed to the ELRC Eldoret registry for directions
- 4.Interim orders extended pending mention on a date to be allocated in court
- Jurisdiction invoked
- Article 162(2) of the Constitution read with section 12 of the Employment and Labour Relations Court Act, 2011
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Makal Loluka Solomon & 3 others v Speaker County Assembly of Baringo & another [2019] KEELRC 1835 (KLR)", Case Analysis (2019). Petition (number not stated on record). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1835/eng@2019-01-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.