Kamau Thuo Fiunifu v Nairobi City County Assembly Service Board & 2 others [2020] KEELRC 288 (KLR)
The bottom line
#A Nairobi court allowed a challenge to two county assembly board appointments to proceed, but the appointees stay in office while the case continues.
What this practically means
#Executive summary
#Key legal issues
#Threshold for granting leave to apply for judicial review
Leave was granted because the respondents' argument on the meaning of 'within 14 days' raised arguable issues fit for determination at the substantive hearing
The court applied the Herbage/Hassan Noor Hassan test: leave is granted where, without going in depth, an arguable case exists. The applicant's quorum contention was answered by Section 8 of the Second Schedule, which validates board action despite vacancies. However, the respondents raised a new interpretive question as to the meaning of 'within fourteen days' for the application window, which the court held could only be resolved after the hearing of the judicial review application.
Effect of quorum irregularity on board decisions
The law does not invalidate a County Assembly Service Board's action for a quorum flaw; Section 8 of the Second Schedule vindicated the respondents
The applicant's principal ground was that the Board lacked quorum when it appointed the two members. The court cited Section 8 of the Second Schedule of the County Assembly Service Act, which permits the Board to act notwithstanding a vacancy and protects proceedings from invalidation, and concluded the law does not foresee invalidation of CASB action on a quorum flaw. This ground therefore did not assist the applicant at the leave stage.
Whether leave should operate as stay
Leave was granted but ordered not to operate as stay, on public interest grounds
The respondents deposed that the two appointees had assumed office and were serving the County Assembly. The court found the decision had been fully implemented and held that public interest militated against staying it. It exercised its discretion to refuse the stay prayer, noting also that no interim stay orders had been granted when the application was certified by Radido J in March 2020.
Legal principles established
#- Leave to apply for judicial review should be granted where, on the material available and without going into the matter in depth, the court considers there is an arguable case
- A board may act notwithstanding a vacancy in its membership and its proceedings are not invalidated by the participation of a person not entitled to participate
Court orders
#- 1.Leave granted to the Ex-parte Applicant to apply for judicial review orders of certiorari and a declaration quashing the appointment of Fatuma Aden Affey and Willis Okello Oluoch as members of the Nairobi City County Assembly Service Board
- 2.Leave granted does NOT operate as stay of the decision of 19th February 2020
- 3.Costs of the application to be in the main application
- Jurisdiction invoked
- Judicial review jurisdiction under Order 53 of the Civil Procedure Rules (the judgment notes the Respondents' jurisdictional objection under Section 12 of the Employment and Labour Relations Court Act but the court proceeded to determine the leave application)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kamau Thuo Fiunifu v Nairobi City County Assembly Service Board & 2 others [2020] KEELRC 288 (KLR)", Case Analysis (2020). Judicial Review Application (Chamber Summons dated 12th March, 2020) - number not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/288/eng@2020-10-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.