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ELRCPartially AllowedJudicial Review (Notice of Motion dated 2nd July, 2021)· [2021] KEELRC 45 (KLR)

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)

High Court of Kenya (Judicial Review)
16 December 2021
4,039 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Exparte Applicant, employed by the Kiambu County Assembly as Director of Procurement on permanent and pensionable terms, was seconded in April 2018 to the County Executive for a three-year term. On expiry in May 2021 he reported back to the Assembly, but the Assembly and County Executive disputed who should retain him, the Assembly asserting a resolution permanently transferring him to the Executive. He was removed from both payrolls, unpaid from May 2021, denied office and duties, and the Assembly advertised his post for replacement. He moved the Court by Notice of Motion seeking certiorari, mandamus, prohibition, declarations and compensation. The Respondents raised a preliminary objection that Sections 77, 85, 86 and 87(2) of the County Governments Act and Public Service Commission Act vested exclusive appeal jurisdiction in the Public Service Commission and barred the suit for failure to exhaust internal remedies. The Court found no administrative or disciplinary decision existed to appeal against, that the internal mechanisms could not grant urgent injunctive relief, and that Section 87(2) therefore did not oust its jurisdiction. On the merits, the Court held the unilateral transfer without a hearing violated Articles 41 and 47 and the rules of natural justice, rendering the transfer ultra vires and void ab initio. The application was allowed: certiorari quashed the transfer and payroll action; mandamus compelled resumption as Director of Procurement; prohibitions restrained transfer, replacement and adverse action; declarations of violation issued; and the Respondents were ordered jointly and severally to pay all arrear remuneration and costs.

Key legal issues

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01

Jurisdiction / exhaustion of internal remedies

Holding

The exhaustion requirement did not apply because no appealable administrative or disciplinary decision existed; Section 87(2) did not oust the Court's jurisdiction.

Reasoning

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.

p. 5
02

Fair administrative action and natural justice

Holding

The unilateral permanent transfer without a hearing violated Article 47, the Fair Administrative Action Act and the rules of natural justice.

Reasoning

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.

p. 6
03

Fair labour practices

Holding

The joint indecisiveness of the County Assembly and County Executive amounted to an unfair labour practice under Article 41.

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 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. 2.Mandamus compelling the Respondents to facilitate resumption of duties as Director of Procurement with full pay and benefits
  3. 3.Prohibition restraining permanent transfer/secondment without consent and due procedure
  4. 4.Prohibition restraining advertising, recruiting or replacing the Applicant as Director of Procurement
  5. 5.Prohibition restraining any action affecting the Applicant's contract of employment and labour rights
  6. 6.Declaration that the unilateral transfer was unreasonable, ultra vires, unfair, in breach of natural justice and void ab initio
  7. 7.Declaration that the Applicant's fundamental freedoms and labour rights were violated
  8. 8.Respondents jointly and severally to pay all arrear remuneration and continue paying per terms of service
  9. 9.Costs of the suit to the Exparte Applicant

Authorities

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Legislation

  • Fair Administrative Action ActSection 9(2) and 9(3)
  • Public Service Commission ActSections 85, 86(1), 87(2)
  • County Governments ActSections 73, 77(1) and (2)
  • County Assembly Services Act (No. 24 of 2017)Section 25
  • Constitution of Kenya, 2010Articles 10, 41, 47, 176(1), 232, 234(2)

Cases cited (7)

  • Samuel Kamau Macharia –vs- Kenya Commercial Bank and 2 Others
    (2012) eKLR
  • Owners of Motor Vehicle, Lilian S. –vs- Caltex Oil (Kenya) Limited
    (1989) eKLR
  • Republic –vs- Benjamin Jomo Washiali, Majority Chief Whip, National Assembly and 4 Others Exparte Alfred Kiptoo and 3 Others
    (2018) eKLR
  • East African Railways Corporation –vs- Antony Setu
    (1973) E.A. 327
  • Speaker of the National Assembly –vs- James Ng’ang’a Karume
    (1992) EKLR
  • Mason Services Limited –vs- Parklands Baptist Church Registered Trustees and Another
    (2018) eKLR
  • Pashito Holdings Ltd. and Another –vs- Paul Nderitu Ndung’u and Others
    Civil Appeal No. 138 of 1997
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

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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, "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.