Magerer Langat & another v Paul Kiprono Chepkwony, the Governor Courty Government of Kericho & 2 others [2020] KEELRC 571 (KLR)
The bottom line
#The Employment Court dismissed a bid by Kericho Municipal Board members to keep their seats after a 2019 law changed who qualifies to serve.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the petitioners' positions as board members have been terminated with malice, unlawfully and if so null and void
- 2.Whether the petitioners were to serve for a term of 5 years
- 3.Whether the court should quash the letter dated 27th September, 2019
- 4.Whether the right to fair administrative action and non-discrimination have been violated
- 5.Who should pay costs
Key legal issues
#Whether the petitioners' membership of the Kericho Municipal Board survived the Urban Areas and Cities (Amendment) Act, 2019
Their term lapsed by operation of law because the amended section 14 introduced qualification criteria and the Act is construed as one with the amended statute
The court held that section 22 of the Interpretation and General Provisions Act requires an amending law to be read as one with the amended law. Section 14 of the 2019 Amendment introduced qualification and composition requirements that did not exist before. Members then serving who did not meet the new criteria ceased to hold office automatically on the Act's commencement on 28 March 2019.
Whether section 14 of the Amendment Act operated retrospectively so as to divest accrued rights
The provision is retroactive but lawful; retroactivity by Parliament is neither unlawful nor malicious
Relying on the Supreme Court's decision in Samuel Kamau Macharia, the court noted the Constitution does not apply retrospectively unless expressly stated, but found the amendment did not divest rights illegitimately accrued. The provision took effect on 28 March 2019 and applied to the petitioners' continued qualification rather than invalidating their original appointment.
Whether the letter/memo of 27th September 2019 and the advertisement of board positions violated fair administrative action and non-discrimination rights
No violation; the petitioners were informed, and the advertisement was a statutory requirement giving all qualified persons a fair chance
The respondents informed the members of the amendment and intended reconstitution through the memo, allowed existing members to serve as caretakers, and encouraged qualified members to apply. Advertising was a requirement under the amended law, not discrimination or a denial of fair administrative action.
Whether the Attorney General's advisory opinion bound the respondents to allow the petitioners to complete their term
The advisory opinion did not amend the law and was not binding
The court distinguished between the operative statute and the Attorney General's advisory opinion, holding the latter advisory in nature and incapable of altering the effect of the amended Act. Whether the petitioners met the new criteria was a matter for application and consideration under section 14.
Allegations of malicious removal tied to World Bank grant theft allegations
The allegations were introduced without foundation or evidence and were extraneous
The court found the petitioners' claims that their removal was motivated by allegations of stealing World Bank grants lacked evidential foundation and were extraneous to the statutory question of reconstitution of the Municipal Board under the amended Act.
Legal principles established
#- Where one written law amends another, the amending law is construed as one with the amended law unless a contrary intention appears, so members who no longer meet amended qualification criteria cease to hold office by operation of law
- A retroactive statutory provision taking effect upon commencement of an amending Act is neither unlawful, malicious nor unfair
- An Attorney General's advisory opinion does not amend the law; it is advisory in nature
Court orders
#- 1.The petition is dismissed for lack of merit
- 2.Each party to bear own costs - the petitioners shall not be penalised in costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 162(2) of the Constitution (Employment and Labour Relations Court); petition filed under Articles 10, 27, 28, 47, 176(1), 184(1) and 259 of the Constitution and the Urban Areas and Cities Act
Relief refused
#Declaration that the respondents' actions in advertising the petitioners' positions were malicious, illegal, unfair, unlawful and null and void
The court found the reconstitution of the Board lawful under the amended Act
Declaration that the petitioners are serving a 5-year term expiring in 2023 and are entitled to finish their term
Their term terminated by operation of law upon commencement of the amending Act
Order of certiorari to quash the letter dated 27th September, 2019
The letter was lawful and procedural
Declaration of unfair administrative action and orders of prohibition/discrimination under Articles 47 and 27
No violation of the Constitution was established; notice was given and the advertisement gave every qualified person a fair chance to apply
Costs
The petitioners raise an important matter of law and shall not be penalised in costs - each party to bear own costs
Quotable passages
#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 court finds no violation of the constitution and the petition is without merit and is hereby dismissed.
The petitioners raise an important matter of law with regard to the application of Urban Areas and Cities (Amendment) Act, 2019 and therefore shall not be penalised in costs.
Therefore, a retroactive provision in a law enacted by Parliament is neither unlawful, with malice nor unfair as the Petitioner seems to suggest.
the members of the board serving then and did not meet the set criteria, their term of service where unqualified automatically lapsed by operation of the law.
The Advisory opinion for the Attorney General did not amend the law. It was advisory in nature.
Issues in the judgment
#Internal inconsistency in dates: the petition states the petitioners were appointed on 1st December, 2018 but elsewhere the petition reads 'they took office effective 1st December, 208' and 'sown into office on 30th November, 2019', and the response refers to a COG request dated '8th April, 2018' where the determination itself and the response elsewhere state 8th April, 2019
The judgment states the amendment 'does not apply retrospectively' and immediately after that it took effect 'retroactively', an apparent contradiction in terms
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Magerer Langat & another v Paul Kiprono Chepkwony, the Governor Courty Government of Kericho & 2 others [2020] KEELRC 571 (KLR)", Case Analysis (2020). Petition No. 6 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/571/eng@2020-07-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.