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ELRCDismissedCase No ELRCJR/2/2020· [2021] KEELRC 2337 (KLR)

Republic v County Governor of West Pokot and County Government of West Pokot & others [2021] KEELRC 2337 (KLR)

Employment and Labour Relations Court of Kenya
19 May 2021
4,006 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 boards can legally be reconstituted when a new law changes qualifications, even mid-term, cutting short members' expected five years.

What this practically means

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Executive summary

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The ex-parte applicants, members of the Kapenguria Municipality Board appointed by Gazette Notice No 8394 of 17th August 2018 for five-year terms, challenged the Governor of West Pokot County's decision of 30th March 2020 (Gazette Notice No 3011) appointing a new Board and degazetting them. They sought certiorari, prohibition, mandamus compelling reinstatement, and a declaration that the decision was null and void, contending the decision disregarded relevant considerations, lacked stakeholder consultation, breached legitimate expectation under section 15 of the Urban Areas and Cities Act, 2011, and exploited the absence of transitional provisions in the Urban Areas and Cities (Amendment) Act, 2019. The respondents, through County Attorney Michael Lokitam, justified the reconstitution on the amended section 14 of the 2011 Act, which introduced qualification requirements absent from the original Act, and relied on an advisory opinion of the Attorney General to the Council of Governors that unqualified members ceased to hold office on the effective date of the amendments. The court applied section 23(2) of the Interpretation and General Provisions Act and the Court of Appeal's decision in Kalpana Rawal, holding that absent a contrary intention the amended law overwrites the former law, and found the reconstitution lawful and constitutional. It acknowledged the applicants' disrupted legitimate expectation and suggested an exit package or compensation should have been considered, but held judicial review cannot grant monetary compensation, leaving them to pursue a constitutional petition or ordinary claim. The application was dismissed with no order as to costs.

Key legal issues

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01

Effect of the Urban Areas and Cities (Amendment) Act, 2019 on existing Municipal Board members

Holding

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

Reasoning

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.

p. 5
02

Legitimate expectation to serve a five-year term

Holding

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

Reasoning

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.

p. 5
03

Public participation and consultation

Holding

The respondent conducted adequate consultation, with evidence of minutes and engagement of stakeholders, and only two former members meeting the new criteria were retained

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.The application dated 4th May 2020 is disallowed
  2. 2.No order as to costs, each party bearing their own costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 184(1); Chapter Six
  • Urban Areas and Cities Act, 2011Sections 13, 13(4), 14, 15, 16
  • Urban Areas and Cities (Amendment) Act, 2019Section 11; new section 14; section 14(6)
  • Fair Administrative Actions ActNot specified
  • County Government ActNot specified
  • Interpretation and General Provisions Act (Cap 2)Section 23(2)

Cases cited (4)

  • Keroche Industries Limited v Kenya Revenue Authority and 5 Others
    (2007) eKLR
  • Republic v Attorney General and Another Ex Parte Waswa and 2 Others
    (2005) eKLR
  • Magerer Langat and Another vs Paul Kiprono Chepkwony, the Governor, County of Kericho and 2 Others
    (2020) eKLR
  • Justice Kalpana Rawal v Judicial Service Commissioner and 4 others
    Civil Appeal No 1 of 2016
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

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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, "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.