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ELRCDismissedPetition No E056 of 2023· [2024] KEELRC 624 (KLR)

Ncharo v County Assembly of Kajiado & 3 others (Petition E056 of 2023) [2024] KEELRC 624 (KLR)

Employment and Labour Relations Court
15 March 2024
AMAnna Ngibuini Mwaure
4,747 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The Petitioner, formerly County Executive Committee member in charge of Education, Vocational Training, Youth and Sports in Kajiado County, petitioned the Employment and Labour Relations Court challenging his removal from office on 21st March 2023 by resolution of the County Assembly of Kajiado. He alleged that the impeachment relied on an amended Standing Order 62 whose implementation had been suspended by conservatory orders in Kajiado High Court Constitutional Petition No. E004 of 2023, and that the five-member Select Committee lacked impartiality because its Chairperson and one member had supported the removal motion. He sought conservatory orders restraining implementation of the resolution. The 1st to 3rd Respondents maintained the removal followed Section 40 of the County Governments Act, that the petitioner was invited, represented by Kibet Korir & Co Advocates, and heard, and that the ex parte orders in Shitanda were later quashed and that petition struck out on 15th May 2023. They further urged that the court lacked jurisdiction to revisit the merits of the removal. The 4th Respondent accepted the process was procedurally defective. The court framed three issues: jurisdiction, constitutionality of the removal proceedings, and entitlement to relief. Following Idris Aden Mukhtar v County Government of Garissa and George Maina Kamau v County Assembly of Muranga, it held it had jurisdiction to examine legality and procedure but not the merits of the removal. It found the process was conducted under Section 40 of the County Governments Act, which prevails over the standing orders, that the Shitanda orders had been set aside, and that no evidence of bias was proved under Section 108 of the Evidence Act. The petition was dismissed with each party bearing its own costs.

Key legal issues

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01

Jurisdiction of the ELRC over impeachment of a CEC member

Holding

The ELRC has jurisdiction to determine the legality and procedure of the removal, as an employment-related constitutional dispute

Reasoning

Relying on Idris Aden Mukhtar v County Government of Garissa, which in turn relied on Richard Bwogo Birir v Narok County Government, the court held that it may consider the legality of state action and whether law and procedure was adhered to, and that separation of powers does not arise where the court interprets regulations. The court therefore concluded it has jurisdiction.

p. 7
02

Constitutionality of the removal proceedings conducted amid a suspended standing order

Holding

The proceedings were lawful as they were conducted under Section 40 of the County Government Act, which prevails over the county standing orders; the ex parte orders in Shitanda had been quashed and the petition struck out

Reasoning

The court found the petitioner did not deny the process followed Section 40 of the County Government Act, and that Section 40 prevails over the standing orders. The ruling of 15th May 2023 struck out the petition in which the impugned orders were issued. Following George Maina Kamau, the court would not examine the merits of the removal grounds.

p. 10
03

Alleged bias/partiality of the Select Committee

Holding

Claim of partiality failed; petitioner produced no satisfactory evidence of conflict of interest

Reasoning

The petitioner alleged that the Chairperson and one member were conflicted because they had supported the impeachment motion and the Chairman's ward was subject of the allegations. The court held these reasons insufficient and applied Section 108 of the Evidence Act that he who alleges must prove. The two members represented their coalitions, not wards, and the removal decision lay with the plenary.

p. 10

Legal principles established

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  • The ELRC has jurisdiction to examine the legality and procedural propriety of a state action removing a CEC member, without delving into the merits of the removal grounds
  • A court will not examine the merits of grounds for removal of a CEC member under Section 40 of the County Government Act
  • Where national and county legislation conflict, national legislation prevails under Article 191 of the Constitution

Court orders

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  1. 1.The Petition dated 24th March 2023 is dismissed and the reliefs sought are declined
  2. 2.Each party will meet their respective costs

Authorities

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Legislation

  • Constitution of KenyaArticle 10(1)
  • Constitution of KenyaArticle 41
  • Constitution of KenyaArticle 162(2)
  • Constitution of KenyaArticle 185(3)
  • Constitution of KenyaArticle 191
  • Constitution of KenyaArticle 236(b)
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Constitution of KenyaArticle 1(2)
  • County Governments ActSection 40
  • County Assembly Powers and Privileges ActSection 10
  • Public Officers Ethics ActSection 12(1)
  • Evidence ActSection 108
  • Civil Procedure ActSection 1B
  • Civil Procedure RulesOrder 21 Rule 1
  • Kajiado County Assembly Standing Orders, 2017Standing Order No. 62(7)

Cases cited (5)

  • Henry Namiti Shitanda v County Speaker of Kajiado County & 2 others
    Constitutional Petition E004 of 2023 [2023]
  • Idris Aden Mukhtar & 2 others v County Government of Garissa & another
    [2015] eKLR
  • Richard Bwogo Birir v Narok County Government & 2 others
    Industrial Court Nakuru Petition No. 1 of 2014
  • George Maina Kamau v County Assembly of Muranga & 2 others
    [2016] eKLR
  • County Government of Nyeri & another v Cecilia Wangechi Ndungu
    [2015] eKLR
Jurisdiction invoked
Article 162(2) of the Constitution (employment and labour relations jurisdiction)

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, "Ncharo v County Assembly of Kajiado & 3 others (Petition E056 of 2023) [2024] KEELRC 624 (KLR)", Case Analysis (2024). Petition No E056 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/624/eng@2024-03-15

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