Barnabas K. Ngeno v County Assembly of Kericho & another [2021] KEELRC 1689 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the impeachment process commenced against the petitioner was flawed
Yes - the petitioner was expected to appear before the select committee on grounds which were not disclosed to him
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.
Scope of judicial interference with internal county assembly processes
Interference is limited to putting the proper process on course; the court will not determine the merits of the impeachment
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.
Whether the respondents' application to vacate the ex parte conservatory orders should succeed
No - it failed in the circumstances
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.
Legal principles established
#- 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
#- 1.Conservatory orders issued ex parte on 29th January 2021 suspending the impeachment proceedings confirmed pending the hearing and determination of the petition
- 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.Respondents' Notice of Motion dated 1st February 2021 dismissed
- 4.Costs of the applications awarded to the applicant/petitioner
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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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