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ELRCAllowedPetition dated October 26, 2023 (not stated in judgment)· [2024] KEELRC 680 (KLR)

Mutuiri v Speaker, Laikipia County Assembly & another (Employment and Labour Relations Petition E012 of 2023) [2024] KEELRC 680 (KLR)

Employment and Labour Relations Court
15 March 2024
OMONESMUS N MAKAU
11,344 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~45 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled that a county assembly cannot sidestep protections for its Clerk through secondment to the Executive.

What this practically means

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Executive summary

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The petitioner, Clerk of the Laikipia County Assembly and Secretary to the County Assembly Service Board since 2013, petitioned against a scheme by the Speaker and the Board to remove him from office. The Governor requested his secondment to the County Executive as acting Municipal Manager of Nanyuki Municipality; the Board approved it in May 2023, a Chief Officer (Peter Ndirangu Hinga) was seconded from the Executive to act as Clerk, and in October 2023 the office of Clerk was declared vacant and advertised for recruitment. The respondents argued the secondment was lawful under section 73 of the County Governments Act, was consented to by the petitioner who dictated its terms, and that the petition failed the Anarita Karimi Njeru precision threshold. The court found the petition properly pleaded, and held that secondment did not vacate the Clerk's substantive office; declaring it vacant violated section 45 of the Employment Act and articles 41, 47 and 236(b) of the Constitution. It further held that cross-secondments between the county assembly and county executive offended the separation of powers and section 26 of the County Assembly Services Act, and that Peter Hinga's secondment to act as Clerk was ultra vires and unconstitutional, the Deputy Clerk being the proper person to act. Consent could not cure the illegality since a contract cannot amend express statutory provisions. All substantive declarations and certiorari orders sought were granted, with permanent injunctions issued, and the petitioner was awarded costs to be agreed or taxed.

Key legal issues

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01

Whether the petition met the Anarita Karimi Njeru precision threshold

Holding

The petition met the competence threshold, pleading with reasonable precision the provisions violated and the manner of violation

Reasoning

The court reviewed paragraphs of the petition and found that paragraphs 35 and 36 set out the constitutional and statutory provisions alleged to have been violated, while paragraphs 20, 24, 25, 26, 27 and 32 to 34 pleaded with reasonable clarity how the violations occurred. It was therefore satisfied the petition disclosed a reasonable cause of action founded on violation of the Constitution.

p. 20
02

Whether declaring the office of Clerk vacant and advertising for recruitment while the petitioner was on secondment was lawful

Holding

It was unlawful, irrational, null and void, violating section 45 of the Employment Act, articles 41, 47 and 236(b) of the Constitution and sections 22 and 23 of the CAS Act

Reasoning

Secondment did not render the office vacant; the petitioner had neither resigned, retired nor been removed under the statutory procedure. Declaring the vacancy purported to terminate employment without valid reason or fair procedure, violating fair labour practices, fair administrative action and protection against removal without due process.

03

Whether the secondments between the County Assembly and County Executive violated the Constitution

Holding

Both secondments violated separation of powers and were ultra vires and unconstitutional

Reasoning

The county assembly and county executive are distinct arms under article 176. Section 26 of the CAS Act requires the Deputy Clerk to act in the Clerk's absence, and a Chief Officer answers within the Executive under section 45 of the County Governments Act. Cross-secondments contravened express law and national values under articles 10 and 232.

04

Whether certiorari could issue quashing the approval of Peter Hinga despite his non-joinder

Holding

Certiorari issued because what was challenged was the legality of the Board's decision, not Hinga's personal rights

Reasoning

The court held that the decision under challenge was that of the 2nd respondent approving an unlawful secondment, which it had already found violated separation of powers and the Constitution. Since unconstitutional decisions are invalid, the order of certiorari was issued notwithstanding the objection on non-joinder.

p. 27

Legal principles established

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  • Secondment of officers between the county assembly and the county executive violates the doctrine of separation of powers and, where it contravenes an express statutory provision, is unconstitutional
  • A contract cannot amend an express provision of the law; purported consent to an unlawful secondment is immaterial
  • Where a Clerk is absent, the Deputy Clerk or another officer of the County Assembly Service must act; a Chief Officer from the Executive cannot be seconded to act as Clerk
  • Any decision or action inconsistent with the Constitution is invalid to the extent of the inconsistency

Court orders

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  1. 1.Declaration that the petitioner is and has been the duly appointed Clerk of the Laikipia County Assembly Service Board/Laikipia County Assembly and can only be removed in accordance with sections 22 and 23 of the County Assemblies Act
  2. 2.Declaration that the purported declaration of vacancy and advertisement of October 19, 2023 for recruitment to the position of Clerk violated the petitioner's constitutional and statutory rights
  3. 3.Order of certiorari quashing the declaration of vacancy and advertisement of October 19, 2023 for recruitment to the position of Clerk
  4. 4.Permanent injunction restraining the respondents from advertising, interviewing, recruiting, employing, confirming or otherwise filling the position of Clerk while the petitioner's contract subsists
  5. 5.Declaration that the decision of the 2nd respondent of May 17, 2023 (Minute No 91/3/2023) seconding the petitioner to the County Executive as acting Municipal Manager - Nanyuki Municipality is unlawful, illegal, capricious, arbitrary, malicious, contrived and a violation of the petitioner's rights
  6. 6.Order of certiorari quashing the decision of May 17, 2023 seconding the petitioner to the Executive arm as acting Municipal Manager of Nanyuki Municipality
  7. 7.Permanent injunction restraining the respondents from seconding and/or transferring the petitioner from the County Assembly Service Board/County Assembly to the County Executive/Public Service Board or otherwise interfering with his contract of employment as Clerk
  8. 8.Declaration that the decision approving the appointment of Mr Peter Ndirangu Hinga as acting Clerk (letter Ref No CGL/CA/CON/02 dated June 6, 2023) is unlawful, illegal, irregular, arbitrary, contrived and unconstitutional
  9. 9.Order of certiorari quashing the decision approving the secondment of Mr Peter Ndirangu Hinga to act as Clerk
  10. 10.Finding and holding that the 1st and 2nd respondents engaged in a malicious scheme of orchestrating the unlawful and unfair termination and/or removal of the petitioner from the Office of the Clerk
  11. 11.Costs of the petition to the petitioner, to be agreed or taxed

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 2(1)-(4), 10, 23, 27, 28, 29, 41(1), 47, 165(5), 176, 185, 232, 234, 235, 236(b)
  • County Governments Act, 2012Sections 12, 13, 45(3), 45(4), 73, 76
  • County Assembly Services Act, 2017Sections 5, 11, 13(5), 17, 18, 19, 20, 22, 23, 25, 26, 27(2)&(3), 30
  • County Assemblies ActSections 22, 23, 27(2)&(3), 30
  • Fair Administrative Action ActSections 2, 4, 5
  • Employment ActSections 5, 5(3), 35, 43, 45, 46
  • Public Appointments (County Assemblies Approval) Act, 2017Sections 4, 5, 6, 7, 8, 9, 11
  • Urban Areas and Cities ActSection 14
  • Public Service Commission RegulationsRegulation 37
  • ELRC Procedure RulesRule 28(3)

Cases cited (4)

  • Anarita Karimi Njeru v Republic
    [1979] eKLR
  • Mumo Matemu v Trusted Society of Human Rights Alliance & another
    [2013] eKLR
  • Pastoli v Kabale District Local Government Council & others
    (2008) 2 EA 300
  • Council of Civil Service Union v Minister for the Civil Service
    [1984] 3 All ER 935
Jurisdiction invoked
Articles 23 and 165(5) of the Constitution of Kenya, 2010 (employment and labour relations jurisdiction)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Mutuiri v Speaker, Laikipia County Assembly & another (Employment and Labour Relations Petition E012 of 2023) [2024] KEELRC 680 (KLR)", Case Analysis (2024). Petition dated October 26, 2023 (not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/680/eng@2024-03-15

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