Migwi & another v County Assembly of Kirinyaga & another (Employment and Labour Relations Petition 16 of 2020) [2023] KEELRC 52 (KLR)
The bottom line
#A Kenyan court ruled that a county assembly's censure resolution is not the same as firing a public officer, and dismissed claims it was unconstitutional.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the ELRC over the petition
The court has jurisdiction because the suit alleges unlawful termination or threatened termination of employment, engaging Article 162(2)(a), Article 165(5) and section 12 of the ELRC Act
The dispute concerns allegations that the 1st petitioner's employment was or would be terminated without due process, a matter within the ELRC's mandate under section 12 of the ELRC Act. The court rejected the respondents' submission that oversight of the executive is beyond its jurisdiction, holding the ELRC may also interpret the Constitution in employment and labour relations disputes.
Nature and effect of the 2nd June 2020 resolution
The resolution was made under section 22 of the County Assemblies Powers and Privileges Act for contempt of the Assembly, not under section 40 of the County Governments Act, and constituted only a ground for removal, not a removal
The court analysed section 39(2) of the County Governments Act, Article 195 of the Constitution and section 22 of the County Assemblies Powers and Privileges Act, and found the resolution arose from the Assembly's oversight mandate after the 1st petitioner failed to produce requested information. It did not remove him from office; removal would require either the Governor's due process or the section 40 procedure, neither of which had been invoked, rendering the petition premature.
Whether fundamental rights were violated
No violation of Articles 27, 28, 41, 47, 50 and 236 was proved; the petitioner was lawfully summoned, appeared, and failed to produce information, committing an offence under section 22
There was no denial that the 1st petitioner was summoned, attended and failed to produce the required documents or give a satisfactory explanation. The allegations of an improperly constituted committee and late tabling of the report were premised on the misconception that section 40 applied. The due process of law was followed and the alleged violations were unsubstantiated by evidence.
Legal principles established
#- A county assembly resolution under section 22 of the County Assemblies Powers and Privileges Act that a county public officer contravened the section constitutes only a ground for removal from office, and does not itself effect removal or summary dismissal
- The ELRC has jurisdiction over disputes concerning the threat of removal of a public officer without due process, and to interpret the Constitution in employment and labour relations matters
Court orders
#- 1.Petition dismissed
- 2.No costs awarded, each side having used Government funds as organs of the same government
- 3.Decision to apply to consolidated Petition No. 15 of 2020 and Petition No. 17 of 2020
- Jurisdiction invoked
- Articles 162(2)(a) and 165(5) of the Constitution and section 12 of the Employment and Labour Relations Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Migwi & another v County Assembly of Kirinyaga & another (Employment and Labour Relations Petition 16 of 2020) [2023] KEELRC 52 (KLR)", Case Analysis (2023). Petition No. 14 of 2020 (ELRC Nyeri). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/52/eng@2023-01-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.