Lucy Wanjiru Kariuk v County Assembly of Nakuru & 2 others; County Government of Nakuru (Interested Party) [2020] KEELRC 1416 (KLR)
The bottom line
#Nakuru's County Assembly botched the removal of a county executive member by denying her cross-examination, so Kenya's Employment Court quashed the proceedings.
What this practically means
#Executive summary
#Key legal issues
#Whether the impeachment/removal process violated fair administrative action and the right to a fair hearing
Yes. The select committee declined the petitioner's legitimate request to cross-examine Hon. Anthony Kiprono Rotich and Hon. John Mwangi Macharia who had deposed adverse affidavits, locked out key evidence (Engineer Daniel Muthiga, the director of supply chain management), and accepted contradictory evidence of Wycliff Agesa and Dan Murugu, rendering the findings subjective and the process premature
Article 47 and section 4 of the Fair Administrative Action Act, read with Article 236(b) of the Constitution and section 40(3) of the County Governments Act, required due process. Facing serious allegations likely to lead to removal, the petitioner was entitled to constitutional and statutory protections. Denial of cross-examination of adverse witnesses and exclusion of her own evidence made the findings of incompetence, gross misconduct and abuse of office subjective and without basis.
Whether separation of powers bars the court's review of the County Assembly's proceedings
No. The court has the constitutional mandate to determine the constitutionality of acts of other organs; the Assembly remained bound to comply with the Constitution and the law
The Supreme Court in the Interim Independent Electoral Commission Advisory Opinion confirmed that legality of executive or administrative actions is determined by the courts, and organs of government play mutually countervailing roles. Jayne Mati confirms the judiciary has the last word on constitutional interpretation. The issue before the court was the manner in which the select committee and Assembly conducted the removal process.
Whether Article 50 (fair trial) applies to disciplinary/removal proceedings
The court did not found its decision on Article 50; the respondents relied on authority that Article 25(c)/Article 50 concerns fair trial in criminal proceedings, not disciplinary proceedings, and the petition was decided on Article 47, section 40 CGA and Article 236(b)
The respondents cited County Assembly of Bungoma v Nendela and JSC v Shollei to contend Article 50 does not apply to disciplinary proceedings. The court's judgment nonetheless grounded the declaration on Article 47 and Article 236(b) read with section 40 of the CGA, so the fair administrative action route carried the decision.
Legal principles established
#- A public officer shall not be dismissed, removed from office, demoted or otherwise subjected to disciplinary action without due process of law (Article 236(b) of the Constitution)
- A person facing removal proceedings who requests to cross-examine witnesses who have given adverse affidavit evidence has a legitimate and reasonable request; failure to allow cross-examination vitiates the process as a violation of fair administrative action under Article 47
- Separation of powers does not oust the court's jurisdiction to determine the constitutionality of acts of other organs of government; the judiciary has the last word on constitutional interpretation
Court orders
#- 1.A declaration that the proceedings for the removal of the petitioner from the infrastructure Portfolio of the interested party were conducted in violation of the Constitution, 2010, the County Governments Act, 2012 and the Nakuru County Assembly Standing Orders, and hence unconstitutional, illegal, null and void
- 2.A declaration that the first respondent's recommendation for the impeachment and removal from office of the petitioner was unconstitutional and unlawful on account of violation of section 40 of the County Governments Act as read with Articles 47 and 236 of the Constitution
- 3.Certiorari in effect quashing the 1st respondent's decision, it being held that the decision cannot stand as there is no foundation
- 4.Each party to bear their own costs
- Jurisdiction invoked
- Article 162(3) of the Constitution of Kenya, 2010 (employment and labour relations jurisdiction), with reference to Articles 47, 50, 165, 236 and 258
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Lucy Wanjiru Kariuk v County Assembly of Nakuru & 2 others; County Government of Nakuru (Interested Party) [2020] KEELRC 1416 (KLR)", Case Analysis (2020). Petition No. 5 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1416/eng@2020-02-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.