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ELRCPartially AllowedNot stated in the judgment· [2024] KEELRC 2036 (KLR)

Mabuka v Speaker, Busia County Assembly & another (Petition E003 of 2024) [2024] KEELRC 2036 (KLR)

Employment and Labour Relations Court
1 August 2024
JKJ.W Keli
4,930 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court protected the Busia County Assembly Clerk from being replaced or sacked, but refused to cancel his controversial secondment while the case continues.

What this practically means

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Executive summary

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This is a ruling on a Notice of Motion dated 20th June 2024 by the Petitioner, the substantive Clerk and Accounting Officer of the Busia County Assembly, seeking conservatory orders pending hearing of a petition challenging his secondment by the respondents from the Busia County Assembly to the County Executive and thereafter to the Lake Region Economic Bloc. The secondment followed a period of compulsory leave imposed from 10th March 2023 in connection with an adverse Auditor-General's report on the Assembly's Revolving Fund, repeated extensions of leave, and audit inquiries touching on his role as accounting officer. The applicant contended that the secondment was irregular because no provision allows secondment of the Clerk, his consent was not sought, and it amounted to constructive dismissal, ethnic profiling and violation of his constitutional rights. The respondents did not file a response, arguing the orders were overtaken by events since the applicant had accepted the secondment. The court, applying the Supreme Court's principles in Gatirau Peter Munya v Dickson Mwenda Kithinji on conservatory orders, found it was not in the public interest to suspend the secondment decision, given the applicant's long acceptance of the secondment and participation in the audit process. However, finding a risk of the petition being rendered nugatory if he were replaced, the court granted only the preservation order restraining termination of the petitioner's contract or recruitment of another Clerk pending determination of the petition, disallowed all other prayers, and made no order as to costs. Directions were issued for priority hearing of the petition.

Key legal issues

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Whether the application merits the grant of conservatory orders

Holding

Partially: only the petitioner's substantive position as Clerk of the Busia County Assembly is preserved (no termination or recruitment of a replacement); suspension of the secondment is refused

Reasoning

Applying the Supreme Court's principles in Gatirau Peter Munya v Dickson Mwenda Kithinji, the court weighed the public interest against the risk of the petition being rendered nugatory. It found the applicant had accepted the secondment, participated in audit processes and came to court only after the renewal of the secondment, so suspending the secondment was not in the public interest. However, renewal of the secondment risked his replacement, defeating the substratum of the petition, warranting a preservation order.

p. 10

Legal principles established

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  • Conservatory orders bear a public-law connotation and are granted on the inherent merits of the case, bearing in mind the public interest, constitutional values and proportionate magnitudes of the relevant causes

Court orders

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  1. 1.Pending the hearing and determination of the Petition, an interim conservatory order restraining the respondents and their assigns or any other person from terminating the contract of the Petitioner or recruiting any other person as Clerk of the Busia County Assembly
  2. 2.All other prayers in the application disallowed
  3. 3.No order as to costs in the application
  4. 4.The petition to be heard on a priority basis; Respondent granted 21 days to file a response; petitioner at liberty to reply on service; mention on 17th September 2024 for hearing directions
Jurisdiction invoked
Article 23 of the Constitution; Rule 23 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013; Rule 17 of the Employment and Labour Relations Court (Procedure) Rules 2016

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, "Mabuka v Speaker, Busia County Assembly & another (Petition E003 of 2024) [2024] KEELRC 2036 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2036/eng@2024-08-01

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