Mkongo v County Assembly of Taita Taveta & 2 others (Petition E001 of 2024) [2024] KEELRC 1568 (KLR)
The bottom line
#The Employment Court dismissed a Taita Taveta CEC's challenge to her impeachment, ruling county assembly removal proceedings need not mirror a criminal trial.
What this practically means
#Executive summary
#Key legal issues
#Whether the petition was a proper constitutional petition
It was not; the constitutional questions, if any, could have been raised in a Memorandum of Claim under Rule 7(3) of the ELRC (Procedure) Rules, 2016, since adequate remedies exist under the Employment Act.
The court held it has jurisdiction over Bill of Rights violations, but employment rights under Article 41 are enacted in the Employment Act and related legislation which provide adequate remedies. Since the petition relied directly on the Constitution to enforce contractual/employment rights without alleging any law invalid or remedies inadequate, the constitutional petition route was needless. The court nonetheless proceeded to determine the substantive issues.
Whether members of the ad hoc select committee were biased
No bias was established; although four members had commented on the floor of the Assembly, the petitioner's own admissions before the committee showed the allegations were objectively addressed.
Applying the objective reasonable apprehension of bias test, the court found the Hansard comments by four members were not contested but were insufficient. The petitioner admitted failing to propose policies, to respond to Assembly statements and to honour invitations, and the committee dismissed some grounds and found only 10 of 14 substantiated. Objectively considered, the admissions defeated the claim of a pre-determined mind.
Whether the denial of cross-examination and witness statements breached Articles 47 and 50 of the Constitution
Article 50(2) applies to criminal proceedings and cannot govern impeachment proceedings; the petitioner was afforded fair administrative action under Article 47, being invited, represented and allowed to make representations and call witnesses.
Relying on the Supreme Court in Shollei v JSC, the court held that a literal construction confining Article 50(2) to accused persons is not acceptable, but in context the protections must be applied appropriately; impeachment is not akin to a criminal hearing. The select committee had discretion over its hearings; no application to cross-examine was made, and the public complainants' statements did not found the impeachment grounds.
Whether the 3rd respondent could be restrained from dismissing the petitioner
No; under Section 31(b) of the CGA the Governor has a mandatory duty to dismiss a CEC member upon a resolution of the County Assembly.
The Governor had received the Assembly's resolution of 27 March 2024 and was bound to act under Section 31(b) of the CGA. He had maintained the status quo only because of interim court orders. The court could not restrain him from performing his constitutional and legal mandate once the petition failed.
Legal principles established
#- Article 50(2) protections accord to accused persons in criminal proceedings and do not translate impeachment/disciplinary proceedings before a county assembly select committee into a criminal trial.
- Where employment-related constitutional claims are brought without alleging that statutory remedies are inadequate, the dispute should be raised by a Memorandum of Claim under Rule 7(3) of the ELRC (Procedure) Rules, 2016 rather than a constitutional petition.
- The test for bias is the objective reasonable apprehension of bias test.
- A party alleging a violation bears the burden of proving it.
Court orders
#- 1.The petition is found without merit and is dismissed
- 2.Costs to the respondents
- Jurisdiction invoked
- Articles 22, 23 and 165(3) of the Constitution (enforcement of Bill of Rights), read with the Employment and Labour Relations Court Act, 2011
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mkongo v County Assembly of Taita Taveta & 2 others (Petition E001 of 2024) [2024] KEELRC 1568 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1568/eng@2024-06-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.