Republic v County Governor of West Pokot and County Government of West Pokot & others [2021] KEELRC 2337 (KLR)
The bottom line
#Kenya's Employment Court ruled that county boards can legally be reconstituted when a new law changes qualifications, even mid-term, cutting short members' expected five years.
What this practically means
#Executive summary
#Key legal issues
#Effect of the Urban Areas and Cities (Amendment) Act, 2019 on existing Municipal Board members
The 2019 amendments repealed and re-enacted section 14 introducing new qualifications; in the absence of savings or transitional provisions, the amended law overwrote the old one and unqualified members' membership ended by operation of law
The court applied section 23(2) of the Interpretation and General Provisions Act (Cap 2) and the Court of Appeal's reasoning in Kalpana Rawal, holding that absent a contrary intention, an amending statute supersedes the former law. The 2019 Act had no transitional provisions, so members not meeting the new qualifications ceased to hold office when the law took effect.
Legitimate expectation to serve a five-year term
The applicants had a legitimate expectation disrupted through no fault of their own, and the respondent ought to have worked out an exit arrangement, but this could not ground the judicial review reliefs sought
Although the court accepted the applicants legitimately expected to serve five years, the legislative amendment lawfully cut short that expectation. The appropriate remedy would be compensation, which judicial review cannot grant; the applicants were left to pursue a constitutional petition or ordinary claim.
Public participation and consultation
The respondent conducted adequate consultation, with evidence of minutes and engagement of stakeholders, and only two former members meeting the new criteria were retained
The replying affidavit of the County Attorney exhibited signed minutes evidencing consultations before names were forwarded to the County Assembly, and the respondents ensured gender, minority, youth and residential representation. The court did not find the process lacking in participation.
Legal principles established
#- Where a written law repeals and re-enacts a provision, references in another written law to the repealed provision are construed as references to the re-enacted provision unless a contrary intention appears; the amended law overwrites the previous written law
- A statutory amendment introducing new qualification requirements applies to existing board members, whose unqualified membership ends by operation of law upon the effective date of the amendment
Court orders
#- 1.The application dated 4th May 2020 is disallowed
- 2.No order as to costs, each party bearing their own costs
- Jurisdiction invoked
- Judicial review jurisdiction (orders of certiorari, prohibition and mandamus) under the law relating to judicial review; statutory framework being Article 184(1) of the Constitution and the Urban Areas and Cities Act, 2011
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v County Governor of West Pokot and County Government of West Pokot & others [2021] KEELRC 2337 (KLR)", Case Analysis (2021). Case No ELRCJR/2/2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/2337/eng@2021-05-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.