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ELRCPartially AllowedPetition at Kericho (ELRC); Notice of Motion dated 26th January 2021 and Notice of Motion dated 1st February 2021· [2021] KEELRC 1689 (KLR)

Barnabas K. Ngeno v County Assembly of Kericho & another [2021] KEELRC 1689 (KLR)

Employment and Labour Relations Court
26 May 2021
8,121 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~32 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court halted Kericho County's impeachment of a CEC because he was never told the specific allegations he had to answer.

What this practically means

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Executive summary

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The ruling determined two competing applications arising from impeachment proceedings commenced against the County Executive Committee Member for Lands, Housing and Physical Planning of Kericho County following his role in reconstituting the Kericho and Litein Municipal Boards after the Urban Areas and Cities (Amendment) Act No. 3 of 2019. By Notice of Motion dated 26th January 2021 the petitioner sought conservatory orders and a temporary injunction suspending the impeachment proceedings gazetted under Gazette Notice No. 495 of 2021, contending that the motion was open-ended, that the invitation letter of 26th January 2021 did not disclose the grounds against him, and that the process breached Articles 25(c), 35, 47 and 50 of the Constitution and section 40 of the County Government Act, 2012. The respondents, through a Notice of Motion dated 1st February 2021, sought to vacate the ex parte conservatory orders issued on 29th January 2021, to compel the petitioner to appear before the select committee, and to strike out the petition, arguing the assembly was exercising its lawful oversight role under Article 185(3), that particulars were supplied, and that the petitioner was guilty of material non-disclosure. The court held that its role was not to determine the merits of the impeachment but only whether the process was proper, and that interference is limited to putting the process on course. Since the letter inviting the petitioner was never placed before the court, the court could not establish that the grounds he was to answer had been disclosed, which breached section 40 of the County Government Act and the Constitution. It found the process as commenced flawed, confirmed the interim conservatory orders pending hearing of the petition, dismissed the respondents' application, awarded costs to the petitioner, and left the assembly free to commence a lawful, fair and transparent process strictly adhering to section 40.

Key legal issues

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01

Whether the impeachment process commenced against the petitioner was flawed

Holding

Yes - the petitioner was expected to appear before the select committee on grounds which were not disclosed to him

Reasoning

The court examined section 40 of the County Government Act, which requires a motion supported by one third of members, appointment of a five-member select committee, and gives the CEC member the right to appear and be represented. The letter inviting the petitioner was not placed before the court by either party, so the court could not determine that the grounds had been put to him as the law envisages. Non-disclosure of the allegations breached section 40 and the Constitution, rendering the process as commenced flawed.

p. 10
02

Scope of judicial interference with internal county assembly processes

Holding

Interference is limited to putting the proper process on course; the court will not determine the merits of the impeachment

Reasoning

The court framed the dispute as being about the impeachment process, not its merits. Adopting a restrained approach, it held the court's role is confined to ensuring the proper process is followed. Since the process as commenced was flawed, conservatory orders suspending it were appropriate, but the assembly remained free to commence a lawful, fair and transparent process.

p. 10
03

Whether the respondents' application to vacate the ex parte conservatory orders should succeed

Holding

No - it failed in the circumstances

Reasoning

The respondents argued material non-disclosure and that the assembly's oversight role under Article 185(3) should not be injuncted. The court nonetheless found the process flawed as commenced and confirmed the interim orders, leaving the respondents free to restart a lawful process. The respondents' application therefore failed, with costs to the petitioner.

p. 10

Legal principles established

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  • A person facing a quasi-judicial select committee investigation is entitled to be informed with particularity of the allegations he is to answer; failure to disclose them breaches section 40 of the County Government Act and the Constitution
  • Courts will interfere with internal disciplinary/impeachment processes only to put the proper process on course, not to determine the merits

Court orders

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  1. 1.Conservatory orders issued ex parte on 29th January 2021 suspending the impeachment proceedings confirmed pending the hearing and determination of the petition
  2. 2.Leave granted to the respondents to institute fresh, fair and transparent investigation and disciplinary processes strictly in adherence to section 40 of the County Government Act, 2012
  3. 3.Respondents' Notice of Motion dated 1st February 2021 dismissed
  4. 4.Costs of the applications awarded to the applicant/petitioner

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A, 63(e), 80
  • Civil Procedure RulesOrder 40 Rule 7; Order 45 Rule 1
  • Constitution of KenyaArticles 10, 236, 25(c), 35, 47, 50(1) & (2)(b), 185(3)
  • County Government Act, 2012Sections 8(1), 40(1)-(6)
  • Urban Areas and Cities Act, 2011Section 14
  • Urban Areas and Cities (Amendment) Act No. 3 of 2019Section 14(1)
  • County Assembly of Kericho Standing OrdersOrder 58; Order 172

Cases cited (7)

  • Uhuru Highway Development Limited v Central Bank of Kenya & others
    [1995] eKLR
  • Kivanga Estates Limited v National Bank of Kenya Limited
    [2017] eKLR
  • Board of Management of Uhuru Secondary School v City County Director of Education & 2 others
    [2015] eKLR
  • Gatirau Peter Munya v Mwenda Kithinji & 2 others
    [2014] eKLR
  • The County Government of Bungoma & 2 others v Stephen Nendela & 2 others
    [2017] eKLR
  • Aviation v Kenya Airport Authority
    [2014] eKLR
  • Ruaha Concrete Co Ltd v Paramount Universal Bank Ltd
    HCCC No. 430 of 2002
Jurisdiction invoked
Constitution of Kenya, 2010 (petition seeking enforcement of Articles 10, 25(c), 35, 47, 50(1) & (2)(b) and 236); County Government Act, 2012, section 40; Civil Procedure Act and Civil Procedure Rules (Order 40 Rule 7, Order 45 Rule 1)

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, "Barnabas K. Ngeno v County Assembly of Kericho & another [2021] KEELRC 1689 (KLR)", Case Analysis (2021). Petition at Kericho (ELRC); Notice of Motion dated 26th January 2021 and Notice of Motion dated 1st February 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1689/eng@2021-05-26

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