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ELRCPartially AllowedConstitutional Petition (number not stated in judgment)· [2021] KEELRC 940 (KLR)

Jackson Ngovi & 6 others v County Assembly of Makueni [2021] KEELRC 940 (KLR)

High Court of Kenya
24 September 2021
MOMaureen Onyango
3,316 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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The High Court let Makueni ex-MCAs keep their 3% mortgage rates but threw out their gratuity claims for lack of evidence.

What this practically means

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Executive summary

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Eight former Members of the Makueni County Assembly, elected on 4th March 2013 and not re-elected at the 8th August 2017 general election, petitioned the High Court against the Makueni County Assembly. They sought declarations that withholding their gratuity and sitting allowance arrears violated Articles 41(1) and 47 of the Constitution, orders compelling remittance of those sums, and orders restraining the Respondent from reverting their mortgage interest rates from the subsidised 3% per annum to commercial rates following default. The Respondent, through the County Clerk's replying affidavit, maintained that the loans were contractual, that default triggered reversion to commercial rates under the SRC circular, and that it was lawfully entitled to withhold gratuity as lien or set-off against the loan arrears under Section 13 of the Pensions Act. The court found it common ground that the Petitioners were entitled to gratuity at the end of their terms but held that they failed to plead the alleged violations with the precision required by the Anarita Kirimi and Mumo Matemu line of authority and produced no evidence quantifying the gratuity or allowance arrears claimed. Prayers (a), (b) and (c) accordingly failed. However, on the interest rate issue the court held that neither the Public Finance Management (Makueni County) Car Loan and Mortgage Fund Regulations, 2016 nor the mortgage application forms signed by the Petitioners contained a reversion-to-commercial-rates condition, and therefore restrained the Respondent from reviewing the rates, which remain at 3% per annum for the life of the mortgages. The petition was otherwise dismissed with each party bearing its own costs.

Key legal issues

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01

Whether withholding gratuity and allowances infringed Articles 41(1) and 47

Holding

The petition failed as the violations were not pleaded with precision and no proof of the dues was adduced

Reasoning

The court applied the precision principle from Anarita Kirimi and Mumo Matemu: constitutional violations must be pleaded with a reasonable degree of precision. The Petitioners merely cited Articles 41 and 47 without demonstrating how they were breached. They also failed to produce terms of service or any instrument quantifying gratuity or sitting allowance arrears, so no infringement was proved.

p. 5
02

Whether the Respondent could revert mortgage interest from 3% to commercial rates on default

Holding

No - the Respondent was restrained; neither the 2016 Regulations nor the signed application forms contained a reversion condition

Reasoning

Although the SRC circular of 17 December 2014 provided that loan terms revert to commercial rates upon default, the court found that the Makueni County State and Public Officers Car Loan and Mortgage Fund Regulations, 2016 contained no such reversion provision, and the mortgage application forms signed by the Petitioners did not contain the condition either. The court thus agreed that there was no basis for the review of interest rates.

p. 5

Legal principles established

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  • Constitutional violations must be pleaded with a reasonable degree of precision; it is not enough to cite constitutional provisions without clarity on how they were violated.
  • A party alleging constitutional infringement bears the burden of proving entitlement and the violation, including particulars of amounts claimed.

Court orders

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  1. 1.The Respondent is restrained from reviewing the interest rates on the Petitioners' mortgages and shall retain the interest rates at 3% per annum for the life of the mortgages
  2. 2.The petition is otherwise dismissed
  3. 3.Each party shall bear its own costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 10, 22, 258, 27, 28, 40, 41(1), 47, 159(2)(d), 173, 176(1), 230, 259, 260, 48
  • Fair Administrative Action ActSection 4
  • Salaries and Remuneration Commission ActSections 11 and 21
  • Pensions ActSections 6 and 13
  • Government Proceedings ActSection 16
  • Public Finance Management (Makueni County State and Public Officer Car Loan and Mortgage Fund) Regulations, 2016Regulations 3, 4, 5, 8, 19, 20, 21, 22, 24
  • Civil Procedure ActSection 1B
  • Civil Procedure RulesOrder 21 Rule 1

Cases cited (2)

  • Anarita Kirimi
  • Mumo Matemu
Jurisdiction invoked
Articles 22 as read with 258 of the Constitution (enforcement of Bill of Rights)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Jackson Ngovi & 6 others v County Assembly of Makueni [2021] KEELRC 940 (KLR)", Case Analysis (2021). Constitutional Petition (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/940/eng@2021-09-24

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