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ELRCPartially AllowedJudicial Review No E016 of 2021· [2022] KEELRC 1152 (KLR)

Republic v Clerk, County Assembly of Homa Bay & another; Elizabeth Ayoo (Exparte) (Judicial Review E016 of 2021) [2022] KEELRC 1152 (KLR)

Employment and Labour Relations Court
25 May 2022
1,882 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan court quashed a County Assembly's attempt to sideline its Speaker, but refused to punish members for contempt because the court orders were never formally served on them.

What this practically means

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Executive summary

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The applicant, Speaker of the County Assembly of Homa Bay, obtained leave on 9 December 2021 to commence judicial review against the Clerk and the County Assembly, with leave operating as a stay of a Notice of Intention to remove her from office and of a letter barring her from performing the functions of Speaker. She also sought contempt citations against 28 members of the Assembly after a fresh removal Motion was introduced on 14 December 2021. The Court found no contempt: the applicant led no evidence that the stay orders were served on or known to the members, and the Clerk was merely performing a statutory duty in notifying her of the new Motion. On the merits, the Court rejected the Respondents' objection that the Motion was defective for want of a supporting affidavit, since Order 53 rules 3 and 4 impose no such requirement. It held that the letter of 6 December 2021 barring the applicant from office had no lawful basis because the statutory provision it relied on had been suspended by the High Court in County Assemblies Forum & Ors v Attorney General, and that the letter, being a command, was amenable to certiorari. The Court also found unsatisfactory the Respondents' late explanation of the date anomaly whereby the notification letter preceded the Notice it conveyed. The Court allowed the judicial review Motion and issued orders of certiorari quashing both the 2 December 2021 notification decision and the 6 December 2021 suspension decision, with each party bearing its own costs.

Key legal issues

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01

Whether the Motion was fatally defective for want of a supporting affidavit

Holding

The Motion was not fatally defective; Order 53 rules 3 and 4 require no supporting affidavit after leave

Reasoning

The Respondents did not identify any legal provision requiring a fresh supporting affidavit, nor cite authority for the objection. Order 53 rules 3 and 4, which govern such Motions, contain no such requirement, so the absence of a supporting affidavit could not render the Motion incompetent.

p. 5
02

Contempt arising from the fresh removal attempt of 14 December 2021

Holding

No contempt found against the members or the Clerk

Reasoning

The applicant produced no evidence that the stay orders of 9 December 2021 were served on or brought to the attention of the members, or that the Assembly had sat in the interim. As for the Clerk, she was under a statutory duty under section 11 of the County Governments Act and the Standing Orders to communicate lodged notices and motions to the Speaker, and was performing a statutory function.

p. 3
03

Lawfulness of the letter of 6 December 2021 barring the applicant from performing the functions of Speaker

Holding

The letter had no lawful basis because the statutory provision it invoked had been suspended by the High Court

Reasoning

Section 7(6) of the County Governments (Amendment) Act, 2020, amending section 11 of the County Governments Act, had been suspended by a conservatory order of the High Court in County Assemblies Forum & Ors v Attorney General issued on 27 July 2020. The letter, being in the form of a command rather than advice, was a decision amenable to certiorari.

p. 5
04

Anomaly of the notification letter dated 2 December 2021 preceding the Notice dated 3 December 2021

Holding

The typographical-error explanation was unsatisfactory because it was advanced late in the proceedings

Reasoning

The Respondents did not mention the alleged typing error in their first replying affidavit or in any supporting affidavits filed during the litigation; the explanation appeared only in an affidavit filed on 24 February 2022, despite the date anomaly being at the heart of the complaint of malice and unlawfulness.

p. 5

Legal principles established

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  • Elements of civil contempt: existence of a court order, service or awareness of it, and wilful disobedience
  • A judicial review Motion need not be supported by a fresh supporting affidavit after grant of leave
  • A command-like letter issued without lawful basis is amenable to quashing by certiorari

Court orders

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  1. 1.An order of certiorari to remove into the Employment and Labour Relations Court at Kisumu for quashing the decisions contained in the Clerk's letter dated 2 December 2021 inviting the applicant to respond to the Notice of Intention to move a removal Motion dated 3 December 2021
  2. 2.An order of certiorari to remove into the Employment and Labour Relations Court at Kisumu for quashing the decision of the Clerk contained in the letter dated 6 December 2021 barring the applicant from performing the functions of the office of Speaker
  3. 3.Each party to bear own costs

Authorities

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Legislation

  • County Governments (Amendment) Act, 2020section 7(6)
  • County Governments Actsection 11
  • Civil Procedure RulesOrder 53 rules 3 and 4

Cases cited (1)

  • County Assemblies Forum & Ors v the Attorney General
    Nairobi Constitutional and Human Rights Petition No. E242 of 2020
Jurisdiction invoked
Judicial review jurisdiction of the Employment and Labour Relations Court under Order 53 of the Civil Procedure Rules (specific constitutional/statutory provision not stated in the judgment)

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 Clerk, County Assembly of Homa Bay & another; Elizabeth Ayoo (Exparte) (Judicial Review E016 of 2021) [2022] KEELRC 1152 (KLR)", Case Analysis (2022). Judicial Review No E016 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1152/eng@2022-05-25

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