Nekesa v County Assembly of Bungoma & 3 others (Employment and Labour Relations Cause E001 of 2023) [2023] KEELRC 896 (KLR)
The bottom line
#A Kenyan court ruled that a county board member who accepted gratuity after the 2022 elections lost her seat, so advertising her position was lawful.
What this practically means
#Executive summary
#Key legal issues
#Whether the applicant's position as the appointed female member of the Bungoma County Assembly Service Board was vacant and open for advertisement
The position was vacant by operation of law under section 12(6) of the County Governments Act with the new assembly in place following the 2022 general elections, and by the applicant's application for and receipt of gratuity, which signalled termination of her services
The applicant's appointment ran with the life of the county assembly until a new member assumed office in the next assembly. A new assembly was in place after the 2022 general elections. Additionally, the applicant applied for gratuity, with exit reason indicated as termination and payment at 100%, which under Bamburi Cement v Kilonzi signalled termination. Hence the authorities she relied on were inapplicable and the advertisement was regular.
Whether the 2nd respondent is irregularly constituted for want of gender balance under Article 27(8) of the Constitution
The Board is lawfully constituted; its membership is five, not six, and the applicant remained a member notwithstanding suspension, so the gender rule was met
Section 12(3) of the County Governments Act provides for five members: the Speaker as chairperson, a vice-chairperson, two members of the county assembly, and one man and one woman appointed from outside the assembly. The clerk is not a member. As the applicant remained in office despite suspension, her presence satisfied the composition requirement; the Supreme Court's advisory opinion in Marilyn Muthoni Kamuru was acknowledged but did not render the Board unconstitutional.
Whether the applicant met the threshold for interlocutory relief (prima facie case, irreparable harm, balance of convenience)
The applicant failed the threshold; no prima facie case was established, damages would be inadequate was disproved by her own claim for damages, and the balance of convenience favoured the respondents
Having found the advertisement lawful under section 12(6), the court saw no basis to exercise discretion in the applicant's favour. Her final prayers included damages, defeating irreparable harm. Balance of convenience favoured the Board, whose operations were prejudiced by the applicant's absence arising from her own acts of standing for election and claiming gratuity.
Legal principles established
#- Where the term of a county assembly ends, an appointed member of a county assembly service board under section 12(3)(d) continues in office until a new member assumes office in the next assembly; vacancy arises by operation of law upon the new assembly's coming into place
- A vacancy in an office occurs where the engagement of the holder is terminated, the holder resigns or leaves, or as provided in the Constitution, legislation or contract
- An application for and receipt of gratuity signals termination of services, as gratuity is paid at the end of a contract, upon resignation or death
Court orders
#- 1.The notice of motion dated 31st January 2023 is dismissed
- 2.Each party to bear own costs
- Jurisdiction invoked
- Articles 3, 10, 23, 27, 35, 41, 47 and 50 of the Constitution; Order 53 Civil Procedure Rules; County Assembly Services Act, 2017; County Governments Act No. 17 of 2012
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nekesa v County Assembly of Bungoma & 3 others (Employment and Labour Relations Cause E001 of 2023) [2023] KEELRC 896 (KLR)", Case Analysis (2023). ELRC Case at Bungoma, Notice of Motion dated 31st January 2023 (arising from claim dated 31st January 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/896/eng@2023-04-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.