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ELRCDismissedRuling in Notice of Motion dated 13th January 2021 and Notice of Motion dated 20th January 2021 (Nyamira County Governor's removal of County Executive Committee Members Petition)· [2021] KEELRC 2128 (KLR)

Douglas Oseko Bosire & 4 others v Amos Kimwomi Nyaribo & 8 others [2021] KEELRC 2128 (KLR)

Employment and Labour Relations Court of Kenya
18 February 2021
HWHellen Wasilwa
2,832 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kenya's Employment Court ruled that county executive committee members automatically lose their jobs when the governor who appointed them leaves office.

What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court determines two interlocutory applications arising from a petition by five former County Executive Committee members of Nyamira County appointed by the late Governor John Obiero Nyagarama on 14th April 2020. Following the Governor's death on 18th December 2020, the Deputy Governor, Amos Kimwomi Nyaribo, assumed office and on 6th January 2021 forwarded new nominees for vetting and approval by the County Assembly. The Petitioners, whose contracts of service were to run until 31st August 2022, sought conservatory orders staying the nomination communiqué, halting the vetting and approval hearings, and restraining interference with their service contracts, alleging violations of Articles 27, 47 and 48 of the Constitution. The Respondents sought review and discharge of ex parte conservatory orders issued on 18th January 2021, contending that under Article 179(7) of the Constitution the CEC members ceased to hold office automatically upon the vacancy in the office of Governor. The Respondents also raised a jurisdictional objection under Article 162(2)(a) and section 4(1) of the Employment and Labour Relations Act. Justice Hellen Wasilwa framed the sole issue as whether the applicants had established a prima facie case with likelihood of success. Holding that the tenure of CEC members is premised on the life of the Governor and that a vacancy arose upon the former Governor's death, the court found the Petitioners' application had no merit, vacated the interim orders, permitted the petition to proceed, and ordered costs in the cause.

Key legal issues

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01

Whether the death of the former Governor of Nyamira County triggered Article 179(7) of the Constitution so as to terminate the Petitioners' tenure as CEC members

Holding

Yes. The court held that upon the former Governor's death a vacancy arose, and the Petitioners ceased to hold office by operation of law, notwithstanding that the 1st Respondent serves only the remainder of the term

Reasoning

The court reasoned that CEC members are appointed by the Governor under Article 179(2)(b) and their term is tied to the life of the Governor. Both parties agreed the former Governor died on 18th December 2020 and the Deputy Governor assumed office. A vacancy therefore existed in the office of Governor before the new Governor assumed office, bringing Article 179(7) into operation and causing the CEC members to cease holding office automatically.

p. 5
02

Whether the interim conservatory orders granted on 18th January 2021 should stand

Holding

No. Having found no prima facie case with likelihood of success, the court vacated the interim orders

Reasoning

The court framed the issue as whether each applicant had established a prima facie case with likelihood of success. Finding the Petitioners' application had no merit on the face of it because Article 179(7) applied, the court concluded the interim orders already in force could not stand and vacated them, while permitting the applicants to proceed with the main petition.

Legal principles established

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  • The appointment and term of office of County Executive Committee members is premised upon the life of the Governor; a vacancy in the office of County Governor automatically causes CEC members appointed by the former Governor to cease to hold office under Article 179(7)

Court orders

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  1. 1.Vacated the interim conservatory orders issued on 18th January 2021
  2. 2.Ordered that the applicants may proceed with the main petition if they so wish
  3. 3.Costs of the applications to be in the cause

Authorities

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Legislation

  • Constitution of Kenya 2010Articles 3, 22, 23, 27, 47, 48, 162(2)(a), 179(1), 179(2)(b), 179(7), 182(1)(a), 182(2), 182(3)(b)
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013Rules 4, 13, 19, 23
  • Public Appointment (Parliamentary Approvals) Act
  • Fair Administrative Actions Act
  • County Government ActSection 31(a)
  • Employment and Labour Relations ActSection 4(1)

Cases cited (7)

  • EWA & 2 Others v Director of Immigration and Registration of Persons & Another
    (2018) eKLR
  • Gatirau Peter Munya v Dickson Mwenda Kithinji
    (2014) eKLR
  • Center for Rights Education and Awareness (CREAW) v Attorney General
    (2011) eKLR
  • County Government of Nyeri & another v Cecilia Wangechi Ndungu
    (2015) eKLR
  • Benard Ngeno & another v County Assembly of Bomet and another
    (2019) eKLR
  • Jacob Kyule & 3 others v County Government of Machakos
    (2018) eKLR
  • Bloggers Association of Kenya (BAKE) v Attorney General & 5 others
    (2018) eKLR
Jurisdiction invoked
Article 23, 162 of the Constitution of Kenya 2010; Rules 4, 13, 19 and 23 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013

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, "Douglas Oseko Bosire & 4 others v Amos Kimwomi Nyaribo & 8 others [2021] KEELRC 2128 (KLR)", Case Analysis (2021). Ruling in Notice of Motion dated 13th January 2021 and Notice of Motion dated 20th January 2021 (Nyamira County Governor's removal of County Executive Committee Members Petition). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/2128/eng@2021-02-18

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