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ELRCDismissedPetition No E007 of 2021· [2022] KEELRC 1178 (KLR)

Murigu & another v Nairobi City County Government & 4 others (Petition E007 of 2021) [2022] KEELRC 1178 (KLR)

Employment and Labour Relations Court
16 May 2022
MNMathews N. Nduma
2,115 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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The Employment Court dismissed a challenge to new Nairobi liquor licensing committee appointments because the former members could not prove their terms had been extended.

What this practically means

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Executive summary

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The petitioners, who had served as Chairman and member of the Dagoretti South and Langata Sub-County Alcoholic Drinks Control and Licensing Committees following Gazette Notice No. 12030 of December 8, 2017, sued over their purported replacement. They alleged that on December 7, 2020 the Governor extended their tenure to December 2023, but the 4th respondent refused to gazette the extension, and on January 12, 2021 the 2nd respondent, as Acting Governor following the Governor's impeachment, gazetted new members via Gazette Notice No. 86. The petitioners sought a declaration that the new appointments were illegal, a certiorari to quash the gazette notice, and mandamus compelling publication of their names, invoking section 6 of the Nairobi City County Alcoholic Drinks Control Licensing Act and various constitutional articles including article 41. The respondents countered that the petitioners were never validly gazetted, that the acting Governor lawfully filled a lacuna in public interest, and challenged the court's jurisdiction. The court held it had jurisdiction as a matter related to employment and labour. Applying sections 107-109 of the Evidence Act, it found the petitioners had produced no legal instrument proving the alleged extension of tenure, while the gazette notice enjoyed a presumption of legality they failed to rebut. The petition was dismissed with costs on May 16, 2022.

Key legal issues

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01

Jurisdiction of the ELRC over appointment of county committee members

Holding

The court found it had jurisdiction, treating the dispute as employment and labour related

Reasoning

The 2nd respondent had challenged jurisdiction under article 162(2) and section 12 of the ELRC Act, arguing the dispute was a statutory/constitutional mandate for the High Court. The court nonetheless held that appointments of public officers fall within its mandate, without extensive reasoning.

p. 6
02

Whether the petitioners' tenure was lawfully extended on December 7, 2020

Holding

Petitioners failed to prove the alleged extension of tenure

Reasoning

The petitioners alleged the impeached Governor extended their tenure to December 2023 by a communique of December 7, 2020, but produced no legal instrument to that effect. The court found the allegation lacked substantive proof and that their names were never gazetted.

p. 6
03

Validity of the appointments gazetted via Gazette Notice No. 86 of January 12, 2021

Holding

The appointments by the 2nd respondent were lawful and proper

Reasoning

Relying on the presumption of legality attaching to a duly produced gazette notice, and on the petitioners' failure to rebut it with compelling evidence, the court held the new committee members held office lawfully at the time of filing the suit.

Legal principles established

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  • He who alleges a fact must prove it on a balance of probabilities under sections 107, 108 and 109 of the Evidence Act
  • A legal instrument duly adduced before court enjoys a presumption of legality unless compelling evidence is adduced to invalidate it

Court orders

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  1. 1.The petition is dismissed with costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 2, 10, 22(3), 27, 41, 43, 47, 162(2), 165(3)(d), 233, 259; Part 13
  • Nairobi City County Alcoholic Drinks Control and Licensing ActSections 6, 6(3)(d)
  • Fair Administrative Actions Act, No. 4 of 2015Sections 4, 9
  • County Government ActSection 33(2)(5)
  • Employment and Labour Relations Court ActSection 12
  • Evidence Act, Cap 80 Laws of KenyaSections 107, 108, 109

Cases cited (4)

  • Kenya National Examination Council v Republic; Ex parte – Geoffrey Kathenji Njoroge and others
    Civil Appeal No. 266 of 1996 [1997] eKLR
  • Republic v The Attorney General and another ex parte James Alfred Kasoro
    Judicial Review Miscellaneous Application No. 44 of 2012
  • Samuel Kamau Macharia v Kenya Commercial Bank and 2 others
    [2012] eKLR
  • Speaker of National Assembly v James Njenga Karume
    [1992] eKLR
Jurisdiction invoked
Article 162(2) of the Constitution and section 12 of the Employment and Labour Relations Court Act (as found by the court)

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, "Murigu & another v Nairobi City County Government & 4 others (Petition E007 of 2021) [2022] KEELRC 1178 (KLR)", Case Analysis (2022). Petition No E007 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1178/eng@2022-05-16

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