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ELRCDismissedNot stated in judgment· [2024] KEELRC 1357 (KLR)

Malibe v County Assembly of Tana River; James & 2 others (Interested Parties) (Petition E003 of 2024) [2024] KEELRC 1357 (KLR)

Employment and Labour Relations Court of Kenya
6 June 2024
2,388 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The petitioner, Chief Officer for Lands and Physical Planning of Tana River County, applied by notice of motion dated 18 April 2024 for conservatory orders by way of temporary injunction restraining the Tana River County Assembly and its ad hoc committee from hearing, discussing or debating a petition by interested parties (representatives of the Tana River CSOs Network) alleging gross misconduct and abuse of office. He argued that only the County Public Service Board, under Sections 59(2) and 76(2) of the County Government Act and Article 236(2) of the Constitution, could exercise disciplinary control over him, and that the Assembly's Standing Orders made no provision for removal of officers other than the Speaker, Governor, Deputy Governor and CECMs. The respondent, through its Clerk Abdullahi Dayib Hussein, maintained that the petition was lodged under Section 15(1) of the County Government Act, which allows any person to petition a county assembly on matters within its authority, and that the Assembly was exercising its oversight mandate under Article 185(3); recommendations would go to the Board as employer. The court framed two issues: whether conservatory orders should issue, and whether the petition was properly instituted. Applying Munya, Karume, Anarita Karimi Njeru and Sumayya Athmani Hassan, the court held the Assembly could not be gagged from its constitutional role; the petitioner's due process rights under Article 236(2) remained protected, and constitutional questions should have been raised in a Memorandum of Claim under Rule 7(3) of the ELRC (Procedure) Rules, 2016. Both the application and the petition were dismissed, with costs to the respondent; the absent interested parties were to bear their own costs.

Key legal issues

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01

Whether the court should issue conservatory orders restraining the County Assembly's ad hoc committee from hearing the petition

Holding

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)

Reasoning

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.

p. 5
02

Whether the petition was properly instituted as a constitutional petition

Holding

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

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.The application dated 18 April 2024 is dismissed
  2. 2.The petition is dismissed as not being a proper petition
  3. 3.Costs to the respondent
  4. 4.The interested parties, not having attended, to bear their own costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 10, 23, 41, 73, 75, 185, 185(3), 201, 232, 236(2), Fourth Schedule
  • County Government ActSections 3, 15, 15(1), 59(2), 76(2), 102, 104
  • Public Finance and Management ActSections 3, 102, 104
  • Tana River County Petition to County Assembly (Procedure) ActSection 6
  • Employment and Labour Relations Court Act, 2011Not specified
  • Employment Act, 2007Not specified
  • Employment and Labour Relations Court (Procedure) Rules, 2016Rule 7(3)
  • County Assembly Standing Orders (Tana River County)Procedures for removal from office; petition procedure

Cases cited (7)

  • Anarita Karimi Njeru v Republic
    [1979] eKLR
  • Mumo Matemo v Trusted Society of Human Rights Alliance & 5 Others
    [2014] eKLR
  • Speaker of the National Assembly v Karume
    [2008] KLR 425
  • Sumayya Athmani Hassan v Paul Masinde Simidi & another
    [2019] eKLR
  • Gatarau Peter Munya v Dickson Mwenda Kithinji & 2 others
    (2014) eKLR
  • Abdikadir Suleiman v County Government of Isiolo and Another
    [2015] eKLR
  • Mike Sonko Mbuvi Gidion Kioko v Clerk, Nairobi City County Assembly & 4 others
    [2020] eKLR
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

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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, "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.