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ELRCAllowedJudicial Review Application dated 13th September, 2021· [2022] KEELRC 423 (KLR)

Republic v Governor Nyamira County & 2 others Ex parte Clive Nyaaga Ogwora [2022] KEELRC 423 (KLR)

Environment and Land Court
24 March 2022
CBChristine N. Baari
2,500 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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A Kenyan court forced Nyamira County to appoint its stalled CEC nominee and pay his salary from April 2021 after the County Assembly ignored his nomination.

What this practically means

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Executive summary

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The ex parte Applicant, nominated in February 2021 by the Governor of Nyamira County as County Executive Committee Member for Environment, Water, Mining and Natural Resources, sought judicial review orders of mandamus compelling his appointment and payment of salaries and emoluments, and prohibition restraining the County Assembly from considering any other name for the position. His name was subjected to public approval hearings but was never debated, approved or rejected by the Assembly, which gave no reasons for its inaction. The 1st and 2nd Respondents argued the Applicant was only nominated, not appointed, and that the court could not compel the exercise of discretion; the Assembly maintained it complied with vetting procedures. The court held that Article 47 and the Fair Administrative Action Act cover acts, decisions and omissions affecting legal rights, and that the Assembly's unexplained inaction breached the Applicant's right to fair administrative action and his legitimate expectation. Relying on Communications Commission of Kenya v Royal Media Services, the court found the expectation legitimate. It further held that the Governor's discretion terminated upon nomination, making appointment mandatory upon approval or lapse of the 21-day statutory period unless the Assembly rejected the name, which it did not. The application succeeded in its entirety: mandamus issued compelling the appointment, mandamus issued for payment of salaries, emoluments and benefits effective 13th April 2021, prohibition issued against consideration of any other name, and costs awarded against the 3rd Respondent.

Key legal issues

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01

Fair administrative action and legitimate expectation

Holding

The Assembly's unexplained inaction on the Applicant's nomination violated Article 47 and his legitimate expectation

Reasoning

The 3rd Respondent facilitated public hearings but never debated, approved or rejected the Applicant's name and gave no reasons. Article 47 and the Fair Administrative Action Act require action that is expeditious, efficient, lawful, reasonable and procedurally fair; omissions affecting legal rights fall within the Act. The Applicant's legitimate expectation, founded on the nomination and vetting process, was violated.

p. 3
02

Mandatory duty to appoint upon nomination

Holding

The Governor's discretion ended at nomination; he was bound to appoint upon approval or expiry of 21 days

Reasoning

Once the 1st Respondent nominated the Applicant for vetting, appointment became mandatory unless the Assembly rejected the name at committee level or in debate. Since no rejection occurred, the Governor was under a duty to appoint, and the County Government liable to pay emoluments from the lapse of the 21-day period.

p. 3

Legal principles established

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  • A nominating authority's discretion terminates at nomination; thereafter appointment is mandatory upon approval or lapse of 21 days unless the Assembly rejected the name
  • An administrative body's omission to decide on a nomination without reasons violates the right to fair administrative action under Article 47

Court orders

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  1. 1.An order of Mandamus compelling the 1st Respondent to appoint the Applicant to the position of Nyamira County Executive Committee Member; Environment, Water, Mining and Natural Resources
  2. 2.An order of Mandamus directing the 2nd Respondent to pay salaries, emoluments and benefits to the Applicant effective 13th April, 2021
  3. 3.An order of Prohibition prohibiting the 3rd Respondent from considering any name forwarded to it by the 1st Respondent for the position of Nyamira County Executive Committee Member; Environment, Water, Mining and Natural Resources
  4. 4.Costs of the proceedings to be borne by the 3rd Respondent

Authorities

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Legislation

  • Public Appointments (County Assemblies Approval) ActSection 9
  • County Government ActSection 35
  • Constitution of Kenya, 2010Articles 22, 23(1)(f), 25(c), 27, 28, 29, 47(1) & (2), 48, 49(1), 50(2), 174
  • Law Reform ActSections 8 and 9
  • Fair Administrative Action ActSection 2

Cases cited (5)

  • County Assembly of Machakos v Alfred Nganga Mutua, Governor, Machakos County & Another; James Timothy Gutetah & 24 Others (Interested Parties)
    (2019) eKLR
  • Re Speaker, County Assembly of Embu
    (2018) eKLR
  • Dr. Moses Kiprotich Langat v Kericho County Assembly Committee on Appointments & Others
    Petition No. 28 of 2019
  • Communications Commission of Kenya & 5 Others v Royal Media Services & 5 Others
    (2016) eKLR
  • President of the Republic of South Africa and Others vs. South African Rugby Football Union and Others
Jurisdiction invoked
Section 8 and 9 of the Law Reform Act; Fair Administrative Action Act; Articles 47, 22, 23(1)(f) of the Constitution (judicial review jurisdiction)

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 Governor Nyamira County & 2 others Ex parte Clive Nyaaga Ogwora [2022] KEELRC 423 (KLR)", Case Analysis (2022). Judicial Review Application dated 13th September, 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/423/eng@2022-03-24

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