Mwangi v Governor, Nairobi City County & another; Kwamboka (Interested Party) (Petition E153 of 2023) [2024] KEELRC 500 (KLR)
The bottom line
#Kenya's Employment Court ruled that Nairobi's County Attorney holds a valid six-year term under transitional law, dismissing the challenge against her continuing in office.
What this practically means
#Executive summary
#Key legal issues
#Whether the Interested Party's tenure as County Attorney expired on 31st December 2022
The Interested Party is lawfully in office; her term was extended for six years from 13.07.2020 pursuant to the transitional provisions in section 31(2) of the Office of the County Attorney Act, 2020, which did not require County Assembly approval
Section 6(1) provides a six-year term and the Interested Party exhibited letters showing she was duly appointed to hold office for six years. The appointment was made under the transitional provisions of section 31(2), not section 5(1), so the County Assembly had no role. The Governor would remain at liberty to make a section 5(1) appointment after the August 2022 elections provided the Interested Party's tenure ended lawfully.
Whether the respondents delayed unreasonably in filling the office of County Attorney
No unreasonable delay established; the Governor has not been shown to have refused to act under section 5(1) of the Act
The petitioner did not prove non-compliance with section 7(3) of the Fair Administrative Action Act. Under Article 259(8), where no time is prescribed, an act must be done without unreasonable delay and as occasion requires. The petitioner did not show that the occasion to act had arisen and no action was taken, or that the failure amounted to unreasonable delay.
Whether the petitioner established constitutional violations warranting the reliefs sought
The petitioner failed to establish the alleged constitutional violations and the petition was dismissed
The court found the litigation to be genuine public interest litigation but convoluted by the statutory transitional provisions governing appointment of the County Attorney. As the Interested Party appeared to be lawfully in office and no unreasonable delay was established, the declarations, restraint, refund and mandamus orders could not issue. Given the genuine public interest character, each party bore own costs.
Legal principles established
#- An appointment made under the transitional provisions in section 31(2) of the Office of the County Attorney Act, 2020 does not require approval of the County Assembly
- Under Article 259(8) of the Constitution, where no time is prescribed for performing a required act, it must be done without unreasonable delay; the petitioner must show the delay was unreasonable or that the occasion to act arose and no action was taken
Court orders
#- 1.The petition is dismissed
- 2.Each party to bear own costs of the petition
- Jurisdiction invoked
- Articles 22, 23 and 259 of the Constitution of Kenya (public interest enforcement petition under the Office of the County Attorney Act, 2020)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mwangi v Governor, Nairobi City County & another; Kwamboka (Interested Party) (Petition E153 of 2023) [2024] KEELRC 500 (KLR)", Case Analysis (2024). Constitutional Petition (ELRC) dated 01.08.2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/500/eng@2024-03-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.