Tom Shavisa & another v Hazina Mudeizi, Speaker, County Assembly of Vihiga, & 3 others [2021] KEELRC 1653 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Jurisdiction of the ELRC
The Court found it had jurisdiction because, upon approval, the Petitioners would have served defined contractual terms with terms and conditions of service
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.
Constitutional threshold of precision
The Petition met the requisite threshold and, in any event, Article 22(3)(b) epistolary jurisdiction militates against rejection on the pleadings
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.
Power of County Assembly to substitute nominees
The resolution to substitute and approve Mr Onzere and Mrs Owiro was invalid and ultra vires
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.
Fait accompli argument
Rejected; ultra vires decisions remain illegal notwithstanding subsequent events
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.
Exemplary damages
Not available; the Assembly had a lawful power to reject, and no malice was proved
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.
Legal principles established
#- 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
#- 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.Petitioners to have costs
- 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
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Great Meru Timber Manufacturers Association v Kenya Forest Service & 3 others[2023] KEELC 16119 (KLR)15 Mar 2023
Cite this brief
#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.