Jane Chepkorir Barus v County Assembly of Baringo & 3 others [2021] KEELRC 1512 (KLR)
The bottom line
#Baringo County Assembly's attempt to remove a Chief Officer without a hearing violated her constitutional rights, costing the county Kshs 1 million plus damages.
What this practically means
#Executive summary
#Key legal issues
#Whether valid reasons existed and due process was followed for the motion seeking removal of the petitioner as County Chief Officer
No valid process was followed; the County Assembly did not comply with Section 40 of the County Government Act, as no select committee was appointed and the petitioner was never heard.
The court examined Section 31 and Section 40 of the County Government Act, which require that a CEC member or chief officer facing removal be investigated by a select committee and be given a right to appear and be represented before that committee. The resolution forwarded to the Governor was necessitated by the Assembly's removal process, but the statutory procedure was not followed: no committee was selected to investigate and the petitioner was never given an opportunity to explain herself, so the respondents failed to accord her fair administrative action.
Whether the petitioner's constitutional rights were breached
Articles 47 and 50(1) of the Constitution were breached because the petitioner was condemned unheard.
Having found no due process, the court held that Article 47's guarantee of fair administrative action was flouted. Article 50(1) was breached because the petitioner was condemned without being heard. The court accordingly returned a verdict that the petitioner's constitutional rights were breached, founding entitlement to the declaratory and consequential remedies awarded.
Whether the Governor acted lawfully in reassigning the petitioner to another department
The reassignment was not an independent exercise of the Governor's prerogative but was necessitated by the flawed Assembly removal process, and was therefore improper.
While the law on reassignment of duties is silent and the Governor would ordinarily not need to justify a reshuffle, the court found that the reassignment here was not done on the Governor's own motion; it was necessitated by the County Assembly's defective removal process. The 3rd respondent therefore exercised his discretion within that tainted process, rendering the transfer null and void as it denied the petitioner fair administrative action.
Whether the petitioner is entitled to the remedies sought
Partially - declaratory orders, certiorari, a permanent injunction, general damages of Kshs. 1 million and costs were granted.
Having found breach of the petitioner's rights, the court granted declarations of violation of Articles 47 and 50, quashed the Assembly's recommendations, enjoined further action based on the Hansard Report, declared the transfer null and void, and awarded general damages of Kshs. 1 million with costs and interest, less than the Kshs. 2 million claimed.
Legal principles established
#- A county chief officer facing a motion for removal is entitled to due process, including appearing before a select committee to answer the allegations, as required by Section 40 of the County Government Act.
- Where a person is condemned unheard, Articles 47 and 50(1) of the Constitution are breached and the administrative action taken is unlawful.
Court orders
#- 1.A declaration that the rights of the petitioner as guaranteed under Articles 47 & 50 of the Constitution were violated by the 1st, 2nd & 3rd respondents.
- 2.An order of Certiorari quashing the recommendations of the 1st and 2nd Respondents seeking to have the petitioner moved or replaced from the Department of Finance and Economic Planning and to institute disciplinary proceedings against her per the Hansard Report dated 11th April 2019.
- 3.A permanent injunction restraining the 3rd and 4th Respondents from taking any further action against the petitioner on the basis of the recommendations of the Hansard Report dated 11th April 2019.
- 4.A declaration that the process employed by the 1st and 2nd Respondents including making recommendations and passing resolutions for the removal, reassigning and/or replacement of the petitioner was prejudicial, unconstitutional and in gross violation of the petitioner's rights.
- 5.A declaration that the decision of the 3rd and 4th Respondents to transfer the petitioner from the Department of Finance and Economic Planning to the Department of Industrialization, Commerce, Enterprise and Cooperative Development was not proper as it relied on the motion passed on 11th April 2019 without due process and is null and void.
- 6.General damages for violation of the petitioner's constitutional rights amounting to Kshs. 1,000,000/-.
- 7.Costs of the petition and interest on the amount awarded to the petitioner with effect from the date of the Judgment.
- Jurisdiction invoked
- Constitution of Kenya, 2010 (Articles 47, 50, 236) and the Employment and Labour Relations Court's jurisdiction under the Employment and Labour Relations Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jane Chepkorir Barus v County Assembly of Baringo & 3 others [2021] KEELRC 1512 (KLR)", Case Analysis (2021). Petition No. 7 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1512/eng@2021-06-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.