Bor & 5 others v Kericho County Assembly & 4 others (Constitutional Petition E006 of 2023) [2024] KEELRC 169 (KLR)
The bottom line
#A Kenyan court blocked Kericho County from removing six officials because they were never given a fair chance to defend themselves.
What this practically means
#Executive summary
#Key legal issues
#Fair hearing in the assembly-initiated removal process under Section 40 of the County Government Act
The process was flawed because the applicants were summoned to give information, not to defend themselves, and were never accorded a hearing before findings against them were made
Section 40 of the County Government Act envisages a fair and just process for removal of CECMs, with a right to appear before the select committee. The applicants appeared before the ad hoc committee only for fact-finding purposes. Since the committee's findings leave them no other avenue to explain culpability, the right to be heard arises at that stage. Its denial renders the process flawed and establishes a prima facie case.
Proper forum for removal of Chief Officers
Chief Officers, being CPSB employees, cannot be removed on the Assembly's recommendations; only the CPSB, exercising disciplinary control under Section 55 of the County Government Act, may remove them after due process
The court distinguished CECMs from Chief Officers. Chief Officers are employees of the CPSB, and any recommendation for their removal must be acted upon by the CPSB through disciplinary procedures under Section 55 of the County Government Act, not by the Governor on the Assembly's recommendation.
Whether conservatory orders should issue
The applicants established a prima facie case with a probability of success warranting interim conservatory relief restraining the removal process
Having found the investigative process procedurally flawed for want of a fair hearing, the court concluded the petition was arguable with a probability of success. Since the respondents had executed their mandate and recommendations were with the Governor for implementation, interim relief preserving the position pending the petition was appropriate.
Legal principles established
#- A county ad hoc committee process recommending removal of a CECM must afford the affected officer a genuine opportunity to be heard; being summoned merely to give information is not a fair hearing
- Chief Officers are employees of the County Public Service Board and can only be removed by the CPSB following due process under Section 55 of the County Government Act
Court orders
#- 1.Orders restraining the 4th Respondent, their agents, servants or any person whatsoever from initiating the removal process or taking any further steps in relation to the recommendations made by the 1st, 2nd and 3rd Respondents pending the hearing and determination of the Petition
- 2.Costs in the petition
- Jurisdiction invoked
- Articles 20, 21, 22, 23, 27, 28, 35, 41, 43, 47 & 50 of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Bor & 5 others v Kericho County Assembly & 4 others (Constitutional Petition E006 of 2023) [2024] KEELRC 169 (KLR)", Case Analysis (2024). Petition (Notice of Motion dated 16th August, 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/169/eng@2024-02-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.