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ELRCDismissedPetition No. 35 of 2020

Mike Sonko Mbuvi Gidion Kioko v Clerk Nairobi City County Assembly & 5 others [2020] KEELRC 113 (KLR)

Employment and Labour Relations Court of Kenya
16 December 2020
5,851 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~23 min to read original · ~4 min brief

The bottom line

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The Employment and Labour Relations Court refused to halt the Senate impeachment process against Nairobi Governor Mike Sonko, holding courts should wait until the political process concludes.

What this practically means

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Executive summary

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This is an interlocutory ruling of the Employment and Labour Relations Court at Nairobi (Mathews N. Nduma J., 16 December 2020) on a notice of motion dated 30th November 2020 filed by Hon. Mike Sonko Mbuvi Gidion Kioko, Governor of Nairobi City County, in Petition No. 35 of 2020. The Governor sought conservatory orders prohibiting the Nairobi City County Assembly and its Speaker from debating an impeachment Motion dated 25th November 2020 moved by Hon. Michael Ogada Okumu under Article 181(1) of the Constitution, and restraining the Senate Speaker from receiving or endorsing any resulting Resolution; he also sought joinder of Okumu and deemed filing of an amended petition. Interim orders granted by Nzioki Wa Makau J. on 30th November 2020 lapsed after his and Rika J.'s recusals; the Assembly debated and passed the impeachment motion on 3rd December 2020 by 88 of 122 members. The respondents argued the petition was moot, the joinder was never granted, the Assembly was functus officio, no court order was breached, and that under Justus Kariuki Mate v Martin Nyaga Wambora courts should not halt ongoing constitutional processes absent blatant violations. Applying the Supreme Court's Gatirau Munya criteria for conservatory orders in public-law matters, and deferring to separation-of-powers principles drawn from the Speaker of the Senate advisory opinion, Mumo Matemu, Waiguru and Ngilu, the court held that although some inherent merit was discernible, public interest militated against interim intervention before the Senate concluded its process. It also declined to imply the joinder of the 6th Respondent or the amendment of the petition. The application was dismissed in its entirety with costs in the cause.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the applicant has satisfied the requirements for grant of a conservatory order pending the hearing and determination of the Petition.
  2. 2.What orders if at all should be granted by the court if the applicant satisfies (i) above.

Key legal issues

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01

Whether conservatory orders should issue to halt the Senate impeachment proceedings pending determination of the Petition

Holding

The application fails; the applicant did not satisfy the Gatirau Munya test and judicial restraint under separation of powers favours awaiting the Senate's conclusion.

Reasoning

The court applied the Supreme Court's Gatirau Munya criteria for conservatory orders in public-law matters. Although inherent merit was discernible, the court entertained sufficient doubts and held that public interest and proportionate magnitudes militate against interim intervention before the Senate concluded its mandated process, citing the Supreme Court's inner-constraints doctrine in Justus Kariuki Mate v Martin Nyaga Wambora and the High Court's approach in Waiguru and Ngilu.

p. 7
02

Whether the intended 6th Respondent was impliedly joined and the amended Petition deemed filed

Holding

No; neither joinder nor amendment was ever expressly granted and cannot be implied.

Reasoning

Counsel argued Nzioki Wa Makau J. inadvertently omitted to grant prayer (ii). The court rejected the invitation to imply the order, holding that in a court of record an express order is required; consequently the petition as filed does not directly deal with the 3rd December 2020 Assembly events, weakening the basis for the interim relief sought.

p. 5
03

The proper judicial posture toward an ongoing gubernatorial impeachment process

Holding

Courts may intervene only in clear actual or impending violations, with restraint, and preferably after the Senate has concluded.

Reasoning

Relying on Justus Kariuki Mate, Mumo Matemu, In the Matter of the Speaker of the Senate, Anne Mumbi Waiguru and Charity Kaluki Ngilu, the court held that each arm of government must respect the others' independence, that the Senate functions like an appellate forum over Assembly impeachment, and that the High Court's supervisory jurisdiction on threshold issues is best exercised after the fact.

p. 6

Legal principles established

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  • Conservatory orders in public litigation are granted on the inherent merit of the case, bearing in mind public interest, constitutional values and proportionate magnitudes, not on private-law injunction criteria.
  • A court may interfere with an ongoing impeachment process only where there is an actual or impending violation of the Constitution or other law, and must tread with utmost caution in observance of separation of powers.
  • Supervisory jurisdiction over the impeachment threshold is best exercised after the conclusion of the process before the County Assembly and the Senate.

Court orders

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  1. 1.The application dated 30th November 2020 is dismissed in its entirety.
  2. 2.Costs in the cause.

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Articles 159(2), 162(2) of the Constitution and Legal Notice No. 117 of 2013 (Mutunga Rules)

Relief refused

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Joinder of the intended 6th Respondent and deemed filing of the amended Petition

Nzioki Wa Makau J. never granted prayer (ii); joinder and amendment cannot be implied in a court of record

p. 5

Conservatory orders prohibiting the County Assembly and Senate from deliberating on the impeachment Motion

The Gatirau Munya public-law criteria were not satisfied; public interest favours allowing the Senate process to conclude before judicial intervention

p. 7

Costs

Costs in the cause.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Accordingly, the application dated 30th November 2020 is dismissed in its entirety. Costs in the cause.
p. 7Final orders - dismissal of the notice of motion
Public interest and the proportionate magnitudes, and priority levels attributable to the present case militate against grant of interim orders before conclusion of the impeachment process by the senate.
p. 7Refusal of conservatory orders pending Senate impeachment proceedings
The court declines the invitation by counsel for the applicant to find that the 6 th respondent was impliedly joined to the suit.
p. 5Joinder cannot be implied; express leave required
Conservatory orders, consequently, should be granted on the inherent merit of the case, bearing in mind the public interest, the constitutional values, and the proportionate magnitudes, and priority levels attributable to the relevant causes.
p. 4Gatirau Munya test for conservatory orders in public litigation

Issues in the judgment

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minor

The judgment inconsistently dates the interim orders and application before Nzioki Wa Makau J., alternately recording them as dated 30th November 2020 and granted on 30th December 2020

minor

The respondents' summary refers to the initial impeachment motion as withdrawn on 25th December 2020, which is chronologically impossible given events of November-December 2020

minor

The two-thirds removal threshold is attributed to Article 188 of the Constitution, whereas the quoted Article 181 governs removal of a governor and Article 188 concerns boundaries of constituencies and wards - a possible mis-citation in the judgment

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, "Mike Sonko Mbuvi Gidion Kioko v Clerk Nairobi City County Assembly & 5 others [2020] KEELRC 113 (KLR)", Case Analysis (2020). Petition No. 35 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/113/eng@2020-12-16

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