Clerk,Nairobi City County Assembly v Speaker, Nairobi City County Assembly & another; Orange Democratic Party & 4 others (Interested Parties) [2020] KEELRC 353 (KLR)
The bottom line
#The Employment Court ruled that Nairobi County Assembly's Clerk was never lawfully appointed, dismissing his claim that the Speaker violated his rights.
What this practically means
#Executive summary
#Key legal issues
#Whether the petition met the Anarita Karimi Njeru precision threshold
The petition met the threshold as it set out the alleged infringements with sufficient precision
The court applied the Anarita Karimi Njeru test as expounded in Trusted Society of Human Rights Alliance and Mumo Matemu, holding that precision demands neither mathematical exactitude nor talismanic formalism. The petition clearly identified the 1st Respondent's actions complained of and the constitutional and statutory provisions said to be violated, giving proper notice of the claims.
Whether the Petitioner's appointment/confirmation as Clerk was lawful
The confirmation was irregular and unlawful; he was never validly appointed under section 13(1) of the County Governments Act nor approved by the Assembly, and was ineligible while a full-time PSC employee
Section 13(1) requires appointment by the Board with Assembly approval; confirmation is not appointment, and no Hansard or evidence of Assembly approval was produced. The Petitioner was at the time a full-time PSC employee on secondment and drew dual salaries, breaching section 26 of the Leadership and Integrity Act and Article 73(2). The consent judgment legitimising his appointment was recorded when the Assembly was sine die and the Board improperly constituted, rendering it void ab initio.
Validity of the consent judgment in ELRC Cause No. 2108 of 2014
The consent was illegally and irregularly executed and unenforceable
At the time the consent was recorded the County Assembly stood prorogued sine die ahead of the general elections and the Board lacked quorum, so the parties lacked authority and capacity to consent. Courts cannot lend their aid to an illegal agreement, per Holman v Johnson (ex turpi causa).
Whether the 1st Respondent violated the Petitioner's constitutional rights
No violation was proved; no evidence substantiated infringements of articles 27, 28, 29, 41, 47 and 236
The Petitioner adduced no evidence of the alleged infringements nor demonstrated irreparable loss. Alleged violations by the 2nd Respondent raised in submissions were not pleaded and the court declined to consider them, parties being bound by their pleadings.
Whether the Petitioner is entitled to the reliefs sought
No; the petition was dismissed and interim orders discharged
The appointment's irregular circumstances meant the 1st Respondent could not be faulted for seeking to unearth them; several prayers were overtaken by events, including the 1st Respondent's resignation as Speaker, and injunctive relief could not attach to an unlawful appointment.
Legal principles established
#- A clerk of a county assembly must be appointed by the county assembly service board with the approval of the county assembly under section 13(1) of the County Governments Act; a confirmation without a prior lawful appointment and approval is invalid
- A consent judgment entered without the authority and capacity of the consenting party is void ab initio and unenforceable
- A person on secondment remains an employee of the original employer at all material times
- An employee seconded to a county assembly cannot simultaneously hold full-time employment and draw salaries from two public bodies, contrary to the Leadership and Integrity Act and Article 73(2) of the Constitution
Court orders
#- 1.Dismissal of the petition as without merit
- 2.Discharge of all interim orders made during the subsistence of the petition, including the stay of Petition No. 71 of 2020 and the order suspending Gazette Notice No. 5072 of 24th July 2020
- 3.Each party to bear their own costs
- Jurisdiction invoked
- Original constitutional/employment jurisdiction of the ELRC; petition invoking articles 23, 27, 28, 29, 41, 47, 73 and 236 of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Clerk,Nairobi City County Assembly v Speaker, Nairobi City County Assembly & another; Orange Democratic Party & 4 others (Interested Parties) [2020] KEELRC 353 (KLR)", Case Analysis (2020). Petition No 194 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/353/eng@2020-10-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.