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ELRCDismissedNot stated in the judgment· [2020] KEELRC 1463 (KLR)

Isaac Felix Olwero v Siaya County Assembly Service Board & 2 others [2020] KEELRC 1463 (KLR)

Employment and Labour Relations Court (implied by coram and subject matter; the judgment does not name the court)
5 March 2020
MNMathews N. Nduma
1,104 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

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The Employment and Labour Relations Court refused to stop the Siaya County Assembly Clerk's removal, finding he was fairly heard throughout the disciplinary process.

What this practically means

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Executive summary

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The applicant, clerk of the County Assembly of Siaya, was suspended on 1st March 2019 for three months over gross misconduct arising from an internal audit of the County Assembly's car loan and mortgage fund, specifically a withdrawal of Kshs. 2,977,281 from Co-operative Bank, Siaya Branch in September 2015. Following a disciplinary committee hearing on 20th May 2019, his suspension was extended and the Board adopted the committee's report recommending revocation of his appointment. A select committee of the Assembly also recommended his removal, which the Assembly adopted on 13th June 2019, though the revocation letter was withheld because of conservatory orders issued by the court on the same day. The applicant moved to court seeking conservatory orders to stop his imminent removal, relying on the audi alteram partem rule. The respondents maintained that due process was followed and that the applicant was heard at every stage. The court, at the interlocutory stage, declined to delve into the merits and held that the applicant was afforded a hearing throughout the suspension, disciplinary and Assembly processes. It further found that the applicant had not established the inherent merit or prima facie case required for conservatory orders, and that no blatant disregard of statutes or the constitution was disclosed. Emphasizing judicial reluctance to interfere with County Assembly proceedings before a final decision is made and communicated, the court dismissed the application on 5th March 2020.

Key legal issues

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01

Whether the applicant established a case for conservatory orders against imminent removal from office

Holding

The application was dismissed because the applicant was afforded a fair hearing throughout the disciplinary process and failed to establish the inherent merit or prima facie case required for conservatory orders

Reasoning

The court found, on the depositions, that the applicant was given an opportunity to respond in writing to allegations at suspension, appeared with his advocate before a disciplinary committee, and was heard by a select committee of the Assembly before its removal recommendation was adopted. At the interlocutory stage the court declined to delve into the merits and found no prima facie case showing blatant disregard of statutes or the constitution. The court was also loath to interfere with County Assembly proceedings before a final decision was made and communicated to the public.

p. 2
02

Whether the court should interfere with County Assembly proceedings

Holding

The court declined to interfere with the Assembly's proceedings before a final decision has been made and communicated to the public

Reasoning

Relying on authority, the court held that interference with County Assembly or parliamentary proceedings is reserved for extreme situations where such bodies act in a manner amounting to abrogation of the constitution. The applicant's case did not disclose such blatant disregard of statutes or the constitution.

p. 2

Legal principles established

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  • The right to fair hearing founded on the principles of natural justice is not a privilege to be graciously accorded
  • Courts should only interfere with proceedings and decisions of a County Assembly or Parliament in extreme situations amounting to abrogation of the constitution
  • A grantee of interlocutory conservatory orders must establish the inherent merit of the case as a key prerequisite

Court orders

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  1. 1.The application lacks merit and is dismissed
  2. 2.Interim conservatory orders previously issued on 13th June 2019 (presumably lapse/discharged by dismissal; not expressly stated)

Authorities

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Legislation

  • Leadership and Integrity Actsection 42(7)

Cases cited (3)

  • Daniel Mudanyi Ocheja vs Judicial Service Commission
    (2019) eKLR
  • Gitirau Peter Munya vs Dickson Mwenda Kithinji and 2 others
    (2014) eKLR
  • Simon Wachira Kogiri vs County Assembly of Nyeri and 2 others
    (2013) eKLR
Jurisdiction invoked
Not expressly stated; the application invoked the court's conservatory order jurisdiction over an interlocutory application in a petition concerning removal of a county assembly clerk

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, "Isaac Felix Olwero v Siaya County Assembly Service Board & 2 others [2020] KEELRC 1463 (KLR)", Case Analysis (2020). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1463/eng@2020-03-05

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