Republic v County Assembly of Siaya Service Board & 2 others; Olwero (Exparte Applicant) (Judicial Review Application E037 of 2023) [2024] KEELRC 1021 (KLR)
The bottom line
#The High Court dismissed a former Siaya County Assembly Clerk's attempt to stop his disciplinary proceedings, confirming the Board acted lawfully.
What this practically means
#Executive summary
#Key legal issues
#Whether the 1st Respondent had jurisdiction to commence disciplinary and removal proceedings against the Clerk
The Board had jurisdiction under Sections 22 and 23 of the County Assemblies Service Act; the contention that only the Senate or County Assembly Finance Committee could act was unfounded
Section 22 permits suspension or removal for gross misconduct; Section 23 sets out the procedure of framing charges, forwarding them to the Clerk and inviting a response. The Applicant's claim that removal as accounting officer required Senate or County Assembly Finance Committee action under the Public Finance Management Act was held to be without legal basis.
Whether the Applicant was afforded a hearing
The letter of 15th August 2023 invited the Applicant to a hearing; the hearing did not take place only because of interim court orders, so no denial of hearing was established
The commencing letter invited the Applicant to a hearing slated for 8th September 2023. The court reasoned that subsequent court orders derailed the hearing, so the Applicant could not claim denial of a hearing given the process had been put in abeyance.
Whether the Respondents took into account irrelevant matters by relying on an internal special audit report not tabled before the County Assembly
Article 229(8) applies to Auditor-General reports only; there is no requirement that an internal audit report be tabled before implementation of its findings
The Court read Article 229(8) and accepted the Respondents' submission that it governs reports of the Auditor-General, not internal auditors. The Applicant had received the charge sheet with the allegations, so the matters relied upon were not in dispute.
Whether the Applicant's entitlement to the car loan could be determined in judicial review
No - that would amount to delving into the merits, which is not the province of judicial review
The Applicant argued the car loan was lawfully conferred under the Siaya County Loan and Mortgage Act and SRC circulars. The court held that deciding whether he was entitled to the loan or obtained it procedurally would require examining the merits of the disciplinary charges, beyond judicial review's remit.
Legal principles established
#- Judicial review is concerned only with the decision-making process, not the merits of the decision
- The County Assembly Service Board has jurisdiction under Sections 22 and 23 of the County Assemblies Service Act to suspend or remove a Clerk for gross misconduct
- Article 229(8) of the Constitution applies only to Auditor-General reports, not internal audit reports
Court orders
#- 1.The Applicant's notice of motion dated 26th September 2023 is dismissed
- 2.All the orders earlier issued pursuant to that motion are discharged
- 3.The Ex parte Applicant shall bear the costs of the application
- Jurisdiction invoked
- Judicial review jurisdiction of the High Court (Fair Administrative Actions Act; orders of certiorari and prohibition)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v County Assembly of Siaya Service Board & 2 others; Olwero (Exparte Applicant) (Judicial Review Application E037 of 2023) [2024] KEELRC 1021 (KLR)", Case Analysis (2024). Judicial Review No. E037 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1021/eng@2024-04-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.