Malibe v County Assembly of Tana River; James & 2 others (Interested Parties) (Petition E003 of 2024) [2024] KEELRC 1357 (KLR)
The bottom line
#The Employment Court in Mombasa refused to stop Tana River County Assembly from hearing a misconduct petition, ruling the petition itself was filed the wrong way.
What this practically means
#Executive summary
#Key legal issues
#Whether the court should issue conservatory orders restraining the County Assembly's ad hoc committee from hearing the petition
No - the orders were premature and unjustified because the Assembly was exercising its constitutional oversight mandate under Article 185 and Section 15 of the County Government Act, and the petitioner's rights remain protected under Article 236(2)
The petition before the Assembly is procedural and lodged under Section 15(1) of the County Government Act. The ad hoc committee is a procedural requirement of the Assembly's oversight function, and its recommendations would go to the County Public Service Board, which retains disciplinary control over the petitioner under Sections 59 and 76(2) of the County Government Act and Article 236(2). Stopping the Assembly without justified cause would impede its mandate to the detriment of the people of Tana River County.
Whether the petition was properly instituted as a constitutional petition
No - constitutional questions arising in employment disputes should be raised in a Memorandum of Claim under Rule 7(3) of the ELRC (Procedure) Rules, 2016, since the Employment Act and related legislation provide adequate remedies
Relying on Anarita Karimi Njeru and Sumayya Athmani Hassan, the court held that Article 41 rights are enacted in the Employment Act and Labour Relations Act, which provide adequate and orderly enforcement mechanisms. Raising employment disputes via constitutional petition bypasses the prescribed procedure, contrary to Speaker of the National Assembly v Karume.
Legal principles established
#- A person has a right to petition a county assembly to consider any matter within its authority, including enacting, amending or repealing its legislation (Section 15(1) County Government Act)
- A county assembly may exercise oversight over the county executive committee and other county executive organs while respecting separation of powers (Article 185(3))
- Where a clear procedure for redress is prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed
- A public officer shall not be dismissed, removed from office, demoted or subjected to disciplinary action without due process of law (Article 236(2))
Court orders
#- 1.The application dated 18 April 2024 is dismissed
- 2.The petition is dismissed as not being a proper petition
- 3.Costs to the respondent
- 4.The interested parties, not having attended, to bear their own costs
- Jurisdiction invoked
- Article 165 and 23 of the Constitution (petition alleging violation of Bill of Rights); jurisdiction acknowledged as to petitions on alleged violation of the Bill of Rights
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Malibe v County Assembly of Tana River; James & 2 others (Interested Parties) (Petition E003 of 2024) [2024] KEELRC 1357 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1357/eng@2024-06-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.