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ELRCDismissedPetition (filed 16th February, 2021) - Employment and Labour Relations Court· [2022] KEELRC 1283 (KLR)

Wathigo v Nairobi City County Government & 3 others (Petition 021 of 2021) [2022] KEELRC 1283 (KLR)

Employment and Labour Relations Court
14 July 2022
MNMathews N. Nduma
1,154 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Employment and Labour Relations Court ruled that a board member whose term expired and was never gazetted anew had no claim to office or unpaid allowances.

What this practically means

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Executive summary

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The petitioner, appointed a member of the Nairobi City County Alcoholic Drinks and Licensing Board under Gazette Notice No. 11267 of 13th November, 2019, challenged the appointment of new Board members by the 2nd respondent vide Gazette Notice No. 85 of 12th January, 2021. He sought declarations that the new appointments were illegal, that he and three named persons (a Chairperson and members) were the duly appointed office holders, an order of certiorari quashing the gazette notice, an order of mandamus compelling publication of their names, and payment of Kshs 166,000.00 being withheld remuneration, sitting allowances and annual gratuity. The respondents opposed, contending that the petitioners' tenure expired on 7th December, 2020, that the petitioner's name was never gazetted so his appointment was incomplete and void, and that the 2nd respondent lawfully exercised his statutory mandate under Section 6 of the Nairobi City County Alcoholic Drinks Control and Licensing Act. The court applied its earlier judgment in ELRC Cause No. E007 of 2021 (16th May, 2022) mutatis mutandis, holding that there is a presumption of legality of duly produced instruments which the petitioners failed to rebut on a balance of probabilities. It found the petitioners' terms had expired by effluxion of time and were never lawfully extended by gazettement, and that the newly appointed officials held office lawfully. The petition was dismissed with costs on 14th July, 2022, by Mathews N. Nduma, Judge, sitting in Nairobi.

Key legal issues

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01

Whether the petitioner's term had lawfully been extended

Holding

The petitioner's term expired by effluxion of time on 7th December, 2020 and was never lawfully extended by gazettement; the petitioners failed to prove they were lawfully in office when the new appointments were made

Reasoning

The court adopted its earlier judgment in ELRC Cause No. E007 of 2021 (delivered 16th May, 2022) mutatis mutandis. It held there is a presumption of legality of instruments duly produced, which the petitioners failed to rebut on a balance of probabilities. Without gazettement, the purported extension of tenure was incomplete and invalid, so the replacement appointments of 12th January, 2021 were lawful.

p. 3
02

Legality of the 2nd respondent's appointment of new committee members

Holding

The 2nd respondent lawfully exercised the statutory mandate to appoint members of the Sub-County Alcoholic Drinks Control and Licensing Committees

Reasoning

The court found, consistent with its prior decision, that the persons appointed by Gazette Notice No. 85 of 12th January, 2021 were lawfully and properly appointed and held office lawfully at the time of filing the suit. No compelling evidence was adduced to displace the presumption of legality attaching to the gazette notice.

p. 3

Legal principles established

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  • There is a presumption of legality of a legal instrument duly produced before court unless compelling evidence is adduced to invalidate it, and the burden lies on the party challenging it

Court orders

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  1. 1.The petition is dismissed with costs

Authorities

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Legislation

  • Nairobi City County Alcoholic Drinks Control and Licensing ActSection 4
  • Nairobi City County Alcoholic Drinks Control and Licensing ActSection 6
  • Nairobi City County Alcoholic Drinks Control and Licensing ActSection 18
  • Employment ActSection 18
  • Fair Administrative Actions Act, No. 4 of 2015Section 4
  • Constitution of KenyaArticles 2, 1, 27, 41, 41(1), 41(2)(b), 43, 47, 233 & 259

Cases cited (1)

  • Employment and Labour Relations Court Cause No. E007 of 2021
Jurisdiction invoked
Constitution of Kenya, 2010 (Articles 2, 1, 27, 41, 43, 47, 233 & 259 invoked in the petition)

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, "Wathigo v Nairobi City County Government & 3 others (Petition 021 of 2021) [2022] KEELRC 1283 (KLR)", Case Analysis (2022). Petition (filed 16th February, 2021) - Employment and Labour Relations Court. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1283/eng@2022-07-14

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