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ELRCDismissedNot stated in judgment· [2022] KEELRC 1580 (KLR)

Murigu & another v Nairobi City County Government & 4 others (Cause E007 of 2021) [2022] KEELRC 1580 (KLR)

Employment and Labour Relations Court
16 June 2022
MNMathews N. Nduma
2,122 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court confirmed that gazetted county appointments are presumed lawful, and challengers must prove otherwise with solid evidence.

What this practically means

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Executive summary

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The petitioners, Chairman and member of the Dagoretti South and Langata Sub-County Alcoholic Drinks Control and Licensing Committees, challenged the appointment of new members of the Nairobi City Sub-County Alcoholic Drinks and Licensing Committees gazetted via Gazette Notice No. 86 of January 12, 2021. They sought a declaration that the appointments were illegal, improper and unconstitutional, an order of certiorari quashing the Gazette Notice, and mandamus compelling the 4th respondent to publish their names pursuant to a communication of December 7, 2020 by which, they alleged, the Governor had extended their tenure to December 2023. The respondents contended that the petitioners were never validly appointed or gazetted, and that following the Governor's impeachment the Acting Governor lawfully appointed new members under Section 6(3) of the Nairobi City County Alcoholic Drinks Control and Licensing Act. The 2nd respondent also challenged the Court's jurisdiction. The court found it had jurisdiction as a matter related to employment and labour. Applying Sections 107, 108 and 109 of the Evidence Act, it held the petitioners bore the burden of proving the alleged extension of tenure but produced no legal instrument to that effect. The duly gazetted appointments enjoyed a presumption of legality which the petitioners failed to displace. The court concluded the new members were lawfully appointed and held office lawfully. Interim orders granted on February 1, 2021 had earlier been set aside on September 23, 2021. The petition was dismissed with costs on June 16, 2022.

Key legal issues

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01

Jurisdiction of the ELRC over the dispute

Holding

The Court found it had jurisdiction as the matter relates to employment and labour

Reasoning

The 2nd respondent challenged jurisdiction under Article 162(2) and Section 12 of the ELRC Act, relying on Samuel Kamau Macharia v KCB, arguing that appointment of board members is a statutory dispute for the High Court. The court rejected this and held the dispute relates to employment and labour.

p. 5
02

Whether the petitioners' tenure was lawfully extended

Holding

The petitioners failed to prove that the impeached Governor extended their tenure; their names were never gazetted

Reasoning

The petitioners alleged a communication of December 7, 2020 extended their tenure to December 2023 but produced no legal instrument to that effect, nor proof that the Government Printer declined to gazette them. The 2nd respondent adduced Gazette Notice No. 86 showing lawful appointment of other persons.

p. 6
03

Validity of the appointments gazetted on January 12, 2021

Holding

The persons appointed by the 2nd respondent were lawfully and properly appointed and held office lawfully at the time of filing the suit

Reasoning

Applying the presumption of legality attaching to a duly produced gazette notice, and in the absence of compelling evidence from the petitioners displacing it, the court upheld the appointments made under Section 6(3) of the Nairobi City County Alcoholic Drinks Control and Licensing Act.

p. 6

Legal principles established

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  • He who alleges a fact must prove it on a balance of probabilities; the primary burden lies on the party alleging, with an evidential burden of rebuttal on the other side
  • A duly gazetted legal instrument 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, 27, 41, 43, 47, 233, 259, 162(2), 165(3)(d), 22(3), Part 13 (grounds)
  • Nairobi City County Alcoholic Drinks Control and Licensing ActSection 6, Section 6(3), Section 6(3)(d)
  • Fair Administrative Actions Act, No. 4 of 2015Section 4, Section 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 –vs- Republic; Ex parte – Geoffrey Kathenji Njoroge and Others
    Civil Appeal No. 266 of 1996 [1997] eKLR
  • Republic –vs- The Attorney General and Another ex parte James Alfred Kasoro
    Judicial Review Miscellaneous Application No. 44 of 2012
  • Samuel Kamau Macharia –vs- Kenya Commercial Bank and 2 Others
    [2012] eKLR
  • Speaker of National Assembly –vs- James Njenga Karume
    [1992] eKLR
Jurisdiction invoked
Article 162(2) of the Constitution and Section 12 of the Employment and Labour Relations Court Act

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 (Cause E007 of 2021) [2022] KEELRC 1580 (KLR)", Case Analysis (2022). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1580/eng@2022-06-16

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