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ELRCPartially AllowedELRC Cause (Mombasa) – statement of claim filed 31.03.2020· [2022] KEELRC 636 (KLR)

Hamisi Bweni Dzila v Kwale County Assembly Service Board & 6 others [2022] KEELRC 636 (KLR)

Employment and Labour Relations Court
25 February 2022
BOByram Ongaya
6,193 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~25 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled that a County Assembly cannot suspend its Clerk without first completing full due process under the law.

What this practically means

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Executive summary

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The claimant, Clerk of the Kwale County Assembly, challenged his administrative suspension dated 02.03.2020 and an undated notice to show cause, alleging violation of Articles 232 and 236 of the Constitution. He sought declarations, injunctions and payment of outstanding salary. The respondents denied wrongdoing, asserted due process under sections 22 and 23 of the County Assembly Service Act, 2017, and raised immunity under section 42 and res judicata (rejected in the interlocutory ruling of 12.03.2021, in which the court had already expressed the opinion that suspension under section 22 without safeguards amounted to potential summary removal in violation of Article 236). At the hearing the claimant pursued prayers 2, 3 and 7, surrendered prayers 4 and 5, and prayers 1 and 6 were treated as determined by the 12.03.2021 ruling. The court held that 'suspend' in section 22 means 'remove' and may only be imposed after due process under section 23; suspension imposed otherwise violates Article 236. It granted an injunction restraining suspension except after culpability is established under section 23. However, it held the respondents validly vested with disciplinary mandate, rejecting the claimant's bias allegations on the authority of the Supreme Court's decision in Gladys Boss Shollei v JSC and the objective test of reasonable apprehension of bias; the declaration that the notice to show cause was unconstitutional was refused. Judgment was entered partially for the claimant with the 1st respondent to pay 50% of his costs, considering consent orders, margins of success and the continuing employment relationship.

Key legal issues

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01

Construction of 'suspend' in section 22 of the County Assembly Service Act, 2017

Holding

Suspension under section 22 is not available as an interlocutory administrative measure; 'suspend' means 'remove' and may only be imposed after due process under section 23, failing which it violates Article 236 of the Constitution.

Reasoning

Section 22 in the absence of statutory safeguards would permit indefinite or eternal suspension, rendering the section 23 removal procedure mute. Section 22 prescribes definitive grounds for suspension or removal, and allegations alone fall short of those grounds. The statutory design is that suspension is amenable to the section 23 removal procedure, requiring due process and observance of natural justice before imposition.

p. 4
02

Whether the 1st respondent has a valid disciplinary mandate notwithstanding alleged bias

Holding

Yes. The respondents are vested with disciplinary powers under sections 22 and 23 and the claimant's generalised bias allegations were not established; the earlier termination set aside by Rika J was not a prior decision on the disciplinary case.

Reasoning

The earlier suit concerned unlawful termination of probationary service, not a disciplinary process, so the Board has not pre-judged the disciplinary case. Sections 22 and 23 contain safeguards, including a Board recommendation subject to Assembly resolution, and avenues exist for disqualification for conflict of interest. Specific bias must be raised case-by-case against individual members before the body itself first.

p. 6

Legal principles established

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  • In section 22 of the County Assembly Service Act, 2017, 'suspend' means 'remove' and cannot be imposed as a preliminary administrative measure; it can only be imposed after due process under section 23 of the Act.
  • Generalised allegations of bias do not disable a statutory disciplinary body; the statutory safeguards in sections 22 and 23 protect the officer and any specific bias claim must first be raised before the body concerned.
  • The objective test of reasonable apprehension of bias applies to bias allegations before disciplinary bodies.

Court orders

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  1. 1.Injunction issued against the 1st, 3rd, 4th, 5th, 6th and 7th respondents restraining them from suspending the claimant from his office as clerk of the County Assembly of Kwale on the basis of the issues raised in these proceedings or other disciplinary proceedings, unless he is found culpable in accordance with section 23 of the County Assembly Service Act, 2017
  2. 2.Declaration that 'suspend' in section 22 of the County Assembly Service Act means 'remove' and shall not be imposed by the Board except in accordance with and after conclusion of the due process prescribed under section 23 of the Act
  3. 3.The 1st respondent to pay 50% of the claimant's costs of the suit

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 176(1), 178(1), 185, 232, 236, 236(b)
  • County Governments Act, 2012sections 8(1), 12(1), 12(3)(a), 12(3)(b) and (c), 12(3)(d), 12(4)
  • County Assembly Service Act, 2017sections 4(3), 17(b), 22, 23, 23(d), 27(1), 42, Second Schedule clauses 1, 2, 3
  • Penal Codesection 129(a)
  • Public Officer Ethics Act2003
  • Public Finance Management Act2017
  • Civil Procedure ActCap. 21, section 7

Cases cited (3)

  • Hamisi Bweni Dzila –Versus- County Assembly of Kwale and Kwale County Assembly Service Board
    ELRC Cause 99 of 2019 (Mombasa)
  • Gladys Boss Shollei –Versus- Judicial Service Commission and 2 Others
    Petition No. 34 of 2014
  • Judicial Service Commission –Versus- Gladys Boss Shollei and Another
    [2014] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Act over employment of the Clerk of the County Assembly; constitutional claims under Articles 232 and 236 of the Constitution of Kenya, 2010

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, "Hamisi Bweni Dzila v Kwale County Assembly Service Board & 6 others [2022] KEELRC 636 (KLR)", Case Analysis (2022). ELRC Cause (Mombasa) – statement of claim filed 31.03.2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/636/eng@2022-02-25

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