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ELRCOtherPetition (Kisumu), 2021· [2021] KEELRC 283 (KLR)

Thomas Tongi Mogendi & 2 others v Kisii County Assembly Service Board & 4 others [2021] KEELRC 283 (KLR)

High Court of Kenya at Kisumu
2 December 2021
CBCHRISTINE N. BAARI
894 words in judgment
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The bottom line

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What this practically means

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Executive summary

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This ruling by the High Court at Kisumu (Christine N. Baari, J) determined a dispute over who is properly on record to represent the 1st Respondent in a petition. Two sets of advocates claimed instructions to act for the 1st Respondent: Ms. Brenda Nyamwaya (with Ms. Grace Muma), instructed by Mr. James O. Nyaoga, the Clerk of the County Assembly of Kisii and Secretary to the 1st Respondent, by letter dated 27th October 2021; and the Firm of Omusolo Mungai & Co. Advocates, instructed by Hon. David Ondimu Kombo by letter dated 29th October 2021. The court framed the single issue as who by law has authority to issue instructions for representation of the 1st Respondent. Relying on Section 17 of the County Assembly Services Act, 2017, the court held that the Secretary, who is the Clerk of the Assembly, is the chief executive officer, accounting officer, custodian of Board records and the person responsible for execution of Board decisions. It followed that individual members of the Board had no authority to issue instructions to advocates on behalf of the 1st Respondent. The court declined to be drawn into the Board's internal quorum disputes, terming them Board-room wrangles not before it. The Notice of Appointment by Omusolo Mungai & Co. Advocates was expunged, and Ms. Nyamwaya and Ms. Muma were deemed properly on record for the 1st Respondent. No costs order was recorded.

Key legal issues

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01

Authority to issue instructions to represent the 1st Respondent

Holding

The Clerk, as Secretary to the Board and custodian of Board records, has the statutory authority to issue instructions; the Firm of Omusolo Mungai & Co. Advocates, instructed by individual members, was not properly on record and their Notice of Appointment was expunged.

Reasoning

Section 17 of the County Assembly Services Act, 2017 designates the Secretary as chief executive officer, accounting officer, custodian of records and person responsible for execution of Board decisions. Instructions issued by individual Board members were therefore ultra vires and without legal authority. Counsel instructed by the Clerk were properly on record.

Legal principles established

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  • The Secretary of a County Assembly Board (the Clerk) is the person who by law has authority to execute Board decisions and issue instructions for representation on behalf of the Board.
  • Individual members of a Board do not have authority to execute Board decisions or issue instructions to advocates on behalf of the Board.

Court orders

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  1. 1.The Notice of Appointment of Advocates filed by the Firm of Omusolo Mungai & Co. Advocates to act for the 1st Respondent is expunged from the court record.
  2. 2.Ms. Brenda Nyamwaya and Ms. Grace Muma are deemed to have lawfully been instructed and are properly on record for the 1st Respondent in this matter.

Authorities

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Legislation

  • County Assembly Services ActSection 17(1)
Jurisdiction invoked
Petition before the High Court; directions on representation

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, "Thomas Tongi Mogendi & 2 others v Kisii County Assembly Service Board & 4 others [2021] KEELRC 283 (KLR)", Case Analysis (2021). Petition (Kisumu), 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/283/eng@2021-12-02

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