Nekesa v County Assembly of Bungoma & 5 others (Judicial Review 1 of 2022) [2023] KEELRC 1604 (KLR)
The bottom line
#Kenya's High Court ruled that a public officer must resign six months before vying for an elective seat, and refused to protect one who didn't.
What this practically means
#Executive summary
#Key legal issues
#Whether the exparte applicant was required to resign as a member of the Bungoma County Assembly Service Board before contesting for Member of Parliament
Yes. She was a public officer enjoying remuneration, car loan, mortgage and medical benefits payable by the exchequer, and was required to resign at least six months before the election; her failure was a violation of the law.
Applying the Supreme Court's definition in Fredrick Otieno Outa, the applicant held public office within the national/county structure and was sustained by the public exchequer. Section 43(5) of the Elections Act required her resignation six months before the election; she was cleared by Jubilee on 29th May 2022 and gazetted without resigning, contrary also to section 23 of the Leadership and Integrity Act on political neutrality.
Whether the 1st to 4th respondents acted in bad faith or the 5th respondent's advice was premature
No. The decisions were lawful and within constitutional and statutory mandate, founded on the applicant's undisputed breach of section 43(5) of the Elections Act.
The EACC advised stoppage of salary, non-clearance and non-payment of gratuity pending investigations after receiving information that the applicant had contested the 9th August 2022 elections without resigning. Since the facts of her candidature were admitted and gazetted, there was nothing to investigate; the employer's power to suspend for valid reasons was properly exercised.
Whether the applicant was discriminated against vis-à-vis Makari, Kipkuti and Mabele
No discrimination was proved. Makari and Kipkuti were elected Members of the County Assembly exempt under section 43(6), and Mabele never contested an elective post.
Section 43(6) of the Elections Act exempts members of county assemblies from the resignation requirement; the two named colleagues were elected MCAso. Mabele, a TSC employee serving on the Board, did not pursue any elective post and so needed no resignation. The differential treatment was therefore grounded in law, not discrimination.
Whether judicial review orders (certiorari, prohibition, mandamus) were available
No. The process leading to the impugned letter was backed by law; the decision was legal and reasonable and the court declined, in discretion, to grant the orders.
Judicial review targets process, not merits; here the process was lawful since the undisputed facts established breach of the resignation requirement. The removal procedure in section 10 of the County Assembly Services Act was inapplicable; her position was due for replacement under section 12(6)(d) of the County Governments Act upon the coming in of a new assembly. Remedies being discretionary and her conduct disentitling her, relief was refused.
Legal principles established
#- A public officer intending to contest an election must resign from public office at least six months before the date of election under section 43(5) of the Elections Act
- A person appointed as a member of a county assembly service board and paid from the exchequer is a public officer within Article 260 of the Constitution and section 2 of the Elections Act
- Judicial review is concerned with the decision-making process, not the merits of the decision
- Judicial review remedies are discretionary; the court may decline relief having regard to the conduct of the applicant
Court orders
#- 1.The Notice of Motion for judicial review orders dated 13th October 2022 is dismissed in its entirety for lack of merit
- 2.Each party to bear its own costs
- Jurisdiction invoked
- Sections 8 and 9 of the Law Reform Act and Order 53 Rule 3 of the Civil Procedure Rules - judicial review jurisdiction of the High Court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nekesa v County Assembly of Bungoma & 5 others (Judicial Review 1 of 2022) [2023] KEELRC 1604 (KLR)", Case Analysis (2023). Judicial Review No 1 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1604/eng@2023-06-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.