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ELRCPartially AllowedPetition No 66 of 2018· [2021] KEELRC 1653 (KLR)

Tom Shavisa & another v Hazina Mudeizi, Speaker, County Assembly of Vihiga, & 3 others [2021] KEELRC 1653 (KLR)

Employment and Labour Relations Court
2 June 2021
1,874 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan county assembly can reject nominees for its service board but cannot replace them with its own picks — doing so is unconstitutional and void.

What this practically means

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Executive summary

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This was a Petition filed in the High Court at Kisumu in June 2018 and transferred to the Employment and Labour Relations Court, challenging the decision of the County Assembly of Vihiga to replace Dr Tom Shavisa and Mary Lihanda with Mr Onzere B. Mudangale and Mrs Dorothy Ayuma Owiro as external members of the County Assembly Service Board. The Board had recruited, interviewed and recommended the Petitioners for approval under section 12(3)(d) of the County Governments Act, but the Assembly, in plenary on 22 February 2018, amended the recommendations and substituted other persons who were sworn in on 4 April 2018. The Respondents challenged the Court's jurisdiction, asserting no employer/employee relationship. The Court found jurisdiction because, upon approval, the Petitioners would have served defined contractual terms with entitlements under the Employment Act. The Court held that while the Assembly could lawfully reject the nominees under section 10 of the Public Appointments (County Assemblies Approval) Act, 2017, it could not itself substitute and approve persons not recommended by the Board; no fresh names were submitted and no public participation or approval hearings were conducted for the substitutes. The substitution was therefore invalid and ultra vires, and the fait accompli argument founded on the oaths of office failed. However, exemplary damages were refused since the Assembly had acted within a lawful option and no malice was proved; the Court accordingly declined to adopt the parties' consent for Kshs 2,500,000/- as damages. The Petition succeeded on the declaratory relief with costs to the Petitioners, delivered on 2 June 2021.

Key legal issues

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01

Jurisdiction of the ELRC

Holding

The Court found it had jurisdiction because, upon approval, the Petitioners would have served defined contractual terms with terms and conditions of service

Reasoning

The Respondents argued there was no employer/employee relationship and that the Petitioners were Teachers Service Commission employees, though no evidence was produced. The Court noted the High Court had transferred the Petition without an appeal or review by the Respondents, and that the appointment process, though not concluded, involved contractual entitlements under the Employment Act such as housing, salaries and leave.

p. 3
02

Constitutional threshold of precision

Holding

The Petition met the requisite threshold and, in any event, Article 22(3)(b) epistolary jurisdiction militates against rejection on the pleadings

Reasoning

The Respondents invoked Anarita Karimi Njeru on lack of specificity. The Court held the Petitioners had cited specific constitutional and statutory provisions, the Respondents did not claim misunderstanding or prejudice, and Article 22(3)(b) favours a liberal approach to pleadings.

p. 3
03

Power of County Assembly to substitute nominees

Holding

The resolution to substitute and approve Mr Onzere and Mrs Owiro was invalid and ultra vires

Reasoning

Under the Public Appointments (County Assemblies Approval) Act, 2017, the Assembly could reject nominees, upon which the nominating authority would submit fresh names. The Assembly could not itself substitute names, no fresh names were submitted by the Board, and no public participation or approval hearings were held for the substitutes.

p. 4
04

Fait accompli argument

Holding

Rejected; ultra vires decisions remain illegal notwithstanding subsequent events

Reasoning

The Respondents argued the Petition was overtaken by events because the substitutes had taken oaths of office. The Court held that an ultra vires decision cannot be legitimised by subsequent acts.

p. 4
05

Exemplary damages

Holding

Not available; the Assembly had a lawful power to reject, and no malice was proved

Reasoning

Exemplary damages punish malicious, oppressive or wilful misconduct. Because the law contemplated rejection of nominees and the Petitioners proved no malice, the Court declined exemplary damages and refused to adopt the parties' consent for Kshs 2,500,000/- as damages.

p. 4

Legal principles established

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  • A County Assembly may reject nominees for a county assembly service board but may not substitute and approve persons not recommended by the nominating authority; it must request fresh names under section 10 of the Public Appointments (County Assemblies Approval) Act, 2017
  • A decision that is ultra vires cannot be overtaken by events and remains an illegality regardless of subsequent oath of office

Court orders

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  1. 1.A declaration that the Respondents' actions of accepting, approving, receiving, gazetting, appointing, absorbing, working with, remunerating, paying, allocating duties and/or in any way accepting the names of Mr Onzere B. Mudangale and Mrs Dorothy Ayuma as external members of the County Assembly Service Board, Vihiga County is a violation of Articles 2, 3, 10 and 201 of the Constitution and section 59 of the County Governments Act and the same is illegal, null and void
  2. 2.Petitioners to have costs

Authorities

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Legislation

  • County Governments Actsections 12(3)(d), 59
  • Public Appointments (County Assemblies Approval) Act, 2017sections 7, 10
  • Employment Act, 2007not specified
  • Constitution of Kenya, 2010Articles 1, 2, 3, 10, 22(3)(b), 23, 56, 73, 124, 127, 159, 165, 179, 196, 197, 201, 232, 259

Cases cited (5)

  • Philip Wanyonyi Wekesa & 2 Ors v Clerk, County Assembly of Bungoma & 4 Ors
    (2018) eKLR
  • Nick Githinji Ndichu v Clerk, Kiambu County Assembly & Ar
    (2014) eKLR
  • Daniel Chitwa Chegenye v Vihiga Clerk County Assembly
    (2016) eKLR
  • County Assembly of Kisumu & 2 Ors v Kisumu County Assembly Board & 6 Ors
    (2015) eKLR
  • Anarita Karimi Njeru v Republic (No 1)
    (1979) KLR 154
Jurisdiction invoked
Articles 22, 23 and 165 of the Constitution read with section 12(3)(d) of the County Governments Act; jurisdiction as an employment court founded on the contractual terms and conditions of service the Petitioners would have served upon approval

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Tom Shavisa & another v Hazina Mudeizi, Speaker, County Assembly of Vihiga, & 3 others [2021] KEELRC 1653 (KLR)", Case Analysis (2021). Petition No 66 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1653/eng@2021-06-02

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