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ELRCDismissedConstitutional Petition dated November 21, 2022 (Samburu)· [2023] KEELRC 280 (KLR)

Lolmingani & another v Lelelit & another (Employment and Labour Relations Petition E019 of 2022) [2023] KEELRC 280 (KLR)

Employment and Labour Relations Court
2 February 2023
4,313 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to lift orders protecting suspended county board members, ruling that you cannot remove public officials by simply hiring their replacements.

What this practically means

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Executive summary

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This ruling by David Nderitu J of the Employment and Labour Relations Court at Nakuru, delivered on February 2, 2023, determines a Notice of Motion by the Governor of Samburu County (1st Respondent) seeking to set aside ex-parte interim conservatory orders issued on November 23, 2022 restraining the recruitment of a chairperson and member of the Samburu County Public Service Board while the petition by the incumbent chair and member was pending. The Governor argued the Petitioners obtained the orders through non-disclosure of material facts: they were suspended on the very day of their appointment in 2019, have never taken the oath of office, and face pending corruption charges in Milimani ACCC No 3 of 2019. The Petitioners, who acknowledged failing to disclose these facts, argued the withheld facts were immaterial and that they may only be removed through lawful process. The court identified a single issue: whether the orders should be set aside for non-disclosure. Applying the principle that only facts so relevant, germane and pertinent that disclosure would have changed the outcome justify setting aside ex-parte orders, the court held the undisclosed facts immaterial: the Petitioners were lawfully appointed, remain in office on suspension at half-pay, have never been removed, and have not been convicted. Recruiting replacements would constitute unlawful removal without due process and create double appointments wasting public resources. The application was dismissed with costs in the petition.

Key legal issues

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01

Whether the Petitioners' non-disclosure of their suspension, pending criminal charges and non-taking of oath of office warranted setting aside the ex-parte conservatory orders

Holding

No - the undisclosed facts were immaterial; had they been disclosed the court would still have issued the conservatory orders to preserve the status quo

Reasoning

The court accepted that the Petitioners had failed to disclose the suspension, criminal charges and absence of oath of office. However, applying the materiality test, it held that the Petitioners had been lawfully appointed and never removed; vacating the orders would countenance their removal without due process and create double appointments. The facts therefore would not have changed the outcome, so the application failed.

p. 8
02

Whether the Respondents could lawfully replace the Petitioners by fresh recruitment

Holding

No - recruitment in respect of occupied offices is not a lawful method of removal; removal requires due process or a valid court order

Reasoning

The court found the Petitioners were lawfully appointed in 2019 and remain in office on suspension at half-pay. No removal proceedings or court orders for removal exist. Facilitating replacement through recruitment would amount to unlawful removal without a hearing, wasting public resources through double occupancy of the same offices.

p. 8

Legal principles established

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  • For ex-parte interim orders to be set aside for non-disclosure, the withheld facts must be so relevant, germane and pertinent that their disclosure would have altered the court's decision
  • A person may not be removed from public office by appointing a replacement; removal must follow due process or a valid court order

Court orders

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  1. 1.The Notice of Motion dated December 8, 2022 by the 1st Respondent seeking to vacate the ex-parte conservatory orders be and is hereby dismissed
  2. 2.Costs of the application be in the petition

Authorities

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Legislation

  • Constitution of KenyaArticles 27, 28, 29, 40, 47, 50, 74, 260, 232, 10; Chapter Six
  • County Government ActSection 58A
  • Constitution of Kenya (Protection of Fundamental Rights and Freedoms) Practice and Procedure RulesRule 25
  • Public Appointments (County Assemblies Approval) Act
  • Leadership and Integrity ActSection 40
  • Public Officers Ethics Act
  • Anti-Corruption and Economic Crimes Act2003

Cases cited (9)

  • Bernard Ng'eno & Another v County Government of Bomet (2019) eKLR
    (2019) eKLR
  • Aviation & Airport Services Workers Union (K) v Kenya Airport Authority & Another (2014) eKLR
    (2014) eKLR
  • Halima Haji Sarah v Multiple Hauliers (E.A) Limited & Another (2022) eKLR
    (2022) eKLR
  • Margaret Wangui Karugu v John Njenga Karugu & Another (2018) eKLR
    (2018) eKLR
  • Gerald Munene Mugo v Muriithi Maganio & 2 Others (2016) eKLR
    (2016) eKLR
  • Sita UK Group Holdings Ltd v Surruys (2010) EWHC 698 (QB)
    (2010) EWHC 698 (QB)
  • The Owners of Motor Vessel Lilian S v Caltex Kenya Ltd
  • Bahadurali Ebrahim Shamji v Al Noor Jamal & 2 Others
  • Amos Mathenge Kabuthu v Simon Peter Mwangi (2015) eKLR
    (2015) eKLR
Jurisdiction invoked
Article 22 & 23 of the Constitution - petition under the Constitution of Kenya (Protection of Fundamental Rights and Freedoms) Practice and Procedure Rules; interim relief under Rule 25 of those Rules

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, "Lolmingani & another v Lelelit & another (Employment and Labour Relations Petition E019 of 2022) [2023] KEELRC 280 (KLR)", Case Analysis (2023). Constitutional Petition dated November 21, 2022 (Samburu). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/280/eng@2023-02-02

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