Republic v County Assembly of Kiambu Service Board & 2 others Ex-Parte James Mbugua Kamau; Kiambu County Public Service Board & another (Interested parties) [2021] KEELRC 45 (KLR)
The bottom line
#The High Court overturned Kiambu County's unilateral transfer of a procurement director, ordering back pay and reinstatement because no hearing was given.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction / exhaustion of internal remedies
The exhaustion requirement did not apply because no appealable administrative or disciplinary decision existed; Section 87(2) did not oust the Court's jurisdiction.
The Respondents argued that Section 77 County Governments Act and Sections 85-87(2) Public Service Commission Act conferred exclusive appeal jurisdiction on the PSC. The Court found the Boards had made no decision to resolve the applicant's limbo and that no temporary or final injunctive relief was available under those mechanisms, leaving urgent relief unattainable; hence no appealable decision existed and the Court could hear the matter.
Fair administrative action and natural justice
The unilateral permanent transfer without a hearing violated Article 47, the Fair Administrative Action Act and the rules of natural justice.
The Applicant was removed from payroll, denied office and duties, and subjected to a purported permanent transfer without any hearing. Relying on Pashito Holdings, the Court held that a decision made in breach of natural justice is no decision at all, and the conduct was oppressive, arbitrary, irrational and amenable to judicial review.
Fair labour practices
The joint indecisiveness of the County Assembly and County Executive amounted to an unfair labour practice under Article 41.
The applicant was left without salary from May 2021 and kept in limbo between two organs of the county government, while his post was advertised for replacement. The Court found this subjected him to an unfair labour practice and urgent relief was necessary to prevent irremediable damage.
Legal principles established
#- Where there is no administrative or disciplinary decision in existence to appeal against, the internal exhaustion mechanisms do not oust the Court's jurisdiction
- Leaving an employee without duties, office or salary without a hearing violates Articles 41 and 47 of the Constitution
Court orders
#- 1.Certiorari quashing the decision to permanently transfer the Exparte Applicant from Kiambu County Assembly to the 2nd interested party and the removal from payroll and withholding of salary
- 2.Mandamus compelling the Respondents to facilitate resumption of duties as Director of Procurement with full pay and benefits
- 3.Prohibition restraining permanent transfer/secondment without consent and due procedure
- 4.Prohibition restraining advertising, recruiting or replacing the Applicant as Director of Procurement
- 5.Prohibition restraining any action affecting the Applicant's contract of employment and labour rights
- 6.Declaration that the unilateral transfer was unreasonable, ultra vires, unfair, in breach of natural justice and void ab initio
- 7.Declaration that the Applicant's fundamental freedoms and labour rights were violated
- 8.Respondents jointly and severally to pay all arrear remuneration and continue paying per terms of service
- 9.Costs of the suit to the Exparte Applicant
- Jurisdiction invoked
- Judicial review jurisdiction of the High Court (Fair Administrative Action Act, 2015; Article 47 of the Constitution) - court held Section 87(2) Public Service Commission Act did not oust jurisdiction
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v County Assembly of Kiambu Service Board & 2 others Ex-Parte James Mbugua Kamau; Kiambu County Public Service Board & another (Interested parties) [2021] KEELRC 45 (KLR)", Case Analysis (2021). Judicial Review (Notice of Motion dated 2nd July, 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/45/eng@2021-12-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.